BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. This appeal from the judgment of His Honour Judge Murphy arises out of an assault on the plaintiff/respondent by the defendants/appellants on 24th April, 1994. The action came on for trial in the Circuit Court on 28th March, 1995. The defendants were then collectively represented by a single solicitor and counsel. Prior to the hearing they were advised by counsel that, having regard to the circumstances of the case, they ought not to contest liability and should not give evidence. They acquiesced in that advice and, accordingly, the trial went on as an assessment of damages only. All three defendants appealed against the award of damages made by Judge Murphy. At the commencement of the appeal hearing, Mr. O'Carroll, S.C., informed the Court that in his view the second defendant, Thomas Dunne Senior, should be separately represented as he, that defendant, now contended that he had taken no part in the assault on the plaintiff. I was informed by counsel that in the circumstances he was appearing for the first and third defendants only and Mr. Devlin of counsel intimated that he was appearing for Mr. Dunne Senior. Mr. Edward Gleeson, S.C., counsel for the plaintiff, informed the Court that this was the first information that he or his solicitor or client had that Mr. Dunne Senior proposed to recile from the position he had adopted in the Circuit Court and that under the Rules of Court he could not do so without prior notice to the Court and to the plaintiff. It is conceded that no such notice had been given, nor had any application for an adjournment of the appeal been made on behalf of the second defendant to allow him time to comply with the requisite rule. In the light of the foregoing I ruled that, as the relevant rule had not been complied with, the appeal would have to proceed as an assessment of damages only as in the Circuit Court.

2. Having considered all of the evidence, I am satisfied, on the balance of probabilities, that the facts are as follows:-

3. The plaintiff is a married woman of 45 years of age who resides with her husband and teenage son in one of a terrace of houses at Cork Street, Kinsale. The dwelling and premises have been in the ownership of her family for generations. The property includes a substantial rear garden and also a "granny flat" adjoining the dwellinghouse which in 1994 was occupied by an aunt of the plaintiff, then 88 years old. The first and second defendants are husband and wife and they reside next door to the McCarthys house. They also have a substantial rear garden. Both houses abut directly on to the footpath at Cork Street and have no front gardens. On 24th April, 1994, the residents in the Dunne house, included their daughter, Yvette, then 13 years of age and son, Thomas Junior, the third named defendant then aged 26 years who was home from England on holidays at the time. Mrs. Dunne is English and a non-Christian. Her husband was born in Kinsale, but then went to England where he lived for many years. In or about 1984, 19 years after he married Mrs. Dunne, the family decided to emigrate to Kinsale. Soon after their arrival they bought the house in Cork Street adjoining the McCarthys dwelling. It appears that relations between the families were strained from the beginning. It deteriorated drastically in or about 1993/4 arising out of a planning application made by the Dunnes to Kinsale U.D.C. for permission to build three houses in their garden. The McCarthys objected unsuccessfully and on or about 20th April, 1994, four days before the events complained of, they lodged an appeal to An Bord Pleanala. The Dunnes bitterly resented the opposition of the McCarthys to their development plans. This view was shared by their son, Thomas, who his mother described in evidence as being a big man over six feet tall.

4. On Sunday afternoon, 24th April, after returning home with his father from having a few drinks, Thomas Dunne Junior called to the McCarthy house in connection with the planning appeal but was told by McCarthy Junior that his parents were not at home. In fact they were at home as was Mrs. McCarthy's sister and brother-in-law who had called to see the old lady, their aunt, in her "granny flat". Mr. McCarthy was working at the bottom of his garden at the time and Mrs. McCarthy, the plaintiff, went down to have a word with him. She was spotted by young Miss Dunne from her window and she reported the fact to her brother Thomas and one or other reported to their parents. At that stage the three defendants made for their garden. Mr. Dunne and his wife climbed on a strong table on their side of the boundary fence and stood facing into the McCarthy property with the upper parts of their bodies exposed above the height of the boundary fence. Thomas Junior stood near them partly on the wall on his side and partly on the McCarthys wooden fence as though intending to jump into their garden. The Dunnes were so displayed in a menacing way when the plaintiff headed back to her house, leaving her husband at work at the rear of his garden out of sight of the Dunnes. All three shouted vulgar abuse at her as she approached. They said that they were looking for her husband. She replied "What do you want him for?" The two male Dunnes said "We are going to kill him" Mr. Dunne Senior kept calling her a Catholic bastard. The plaintiff was terrified. Her husband came up the garden. The Dunnes then complained about the trouble he was causing as to their planning permission and they, the male Dunnes, then threatened to kill him. Mrs. McCarthy was terrified, particularly about what might happen her husband, and she said that she was going to the Gardai for help. The local barracks is not far away at the end of Cork Street. At that time the McCarthys had no phone. The plaintiff could not get into her house by the back door as it was close to where the Dunnes were standing. She went around the far side of the house and into the "granny flat", her husband followed her. It was decided that as threats had been made to kill Mr. McCarthy, the plaintiff should go for the police. They believed then that the Dunnes were still in their back garden. Mrs. McCarthy stepped out on to the street from the "granny flat" hall-door and closed it behind her. She then found herself confronted by all three defendants.

5. The Plaintiff described, and I accept, that Mrs. Dunne grabbed her by the hair and jammed her between a parked car and the house. She was punched and knocked down. Her head was then beaten off the door step and was again punched. Her hair was pulled out in lumps. She called out for help from her husband. Mrs. Dunne kept jeering her saying "Call Johnny now and see if he will come". All the while Mr. Dunne Senior was encouraging his wife. He kept calling the plaintiff a Catholic bastard and saying "Fuck the guards". While she was on the ground the plaintiff tore her hands trying to get away. Eventually she got her fingers into the letterbox which is low down in her aunt's hall-door. Her shouts were then heard and her husband came to her assistance. At that time she thought that she was going to be killed. Mrs. Dunne was continuing to pull tufts of hair from her head. Both male Dunnes were close by as she was being assaulted by Mrs. Dunne. She could see their legs and hear Mr. Dunne Senior shouting at her.

6. Mr. McCarthy brought his wife into the granny flat, having pulled her away from Mrs. Dunne. She was trembling, crying and hysterical. Her head was swelling on the right side. She had a black right eye and her nose was black and blue. It was evident that Mrs. McCarthy needed medical attention. Her husband went out to fetch a doctor but the Dunnes would not let him pass. Thomas Dunne Junior went home and fetched a lump-hammer which he used to strike the "granny flat" door. Eventually, Mr. and Mrs. O'Shea, the plaintiff's sister and brother-in-law, managed to drive her to the hospital in Kinsale from which she was transferred to the Regional Hospital in Cork for a head scan and observation. She was discharged home at 3.00 a.m. on the following morning. Mrs. Dunne was still shouting vulgar abuse as the plaintiff was being driven away from her house. The two male Dunnes were also still present at that time.

7. When the plaintiff returned home from hospital she was in shock. She stated in evidence that her body was vibrating. She was having fits of crying and could not sleep. The back of her head was sore from loss of hair. She was sore in the middle of her back and in the areas where she had suffered blows.

8. On the following day she consulted her G.P., Dr. Tom O'Leary. He gave evidence that on examination he found that the plaintiff's nose and forehead were bruised; her temples were very tender; her right shoulder and right back were tender and sore; she was very emotionally upset, crying and shaking. She was accompanied by her husband who had to take two weeks off work to stay with his wife constantly. She required sleeping and relaxant tablets. She still requires the latter daily which are prescribed by Dr. O'Leary. He described his patient as being a timid, quiet lady before the incident. Her physical injuries cleared up in some weeks, but the psychological injury did not. It continues and has been exacerbated from time to time by further verbal abuse of the Plaintiff by the first and second defendants. She remains in fear of going out on her own and it is with reluctance that she goes shopping locally in Kinsale where she has lived all her life. Her fear has been re-inforced by further episodes of verbal abuse by the first and second defendants if she happens to meet them in Kinsale. The plaintiff avoids them as much as she can. She will not now go shopping in Cork, save with her husband, as she is afraid that she might be attacked by someone in the way that she had been physically assaulted by Mrs. Dunne and she fears having no-one to save her in such circumstances.

9. Dr. O'Leary sent the plaintiff for counselling to Mr. John Wilcox, a psychologist in Kinsale. He first saw her on 25th May, 1994 and diagnosed that she was suffering from post traumatic stress syndrome. He described in evidence that she responded well to counselling but there have been a series of set-backs by further verbal abuse of the plaintiff by the first and second defendants since the original assault. She has had panic attacks and is concerned about being in confined or crowded areas. Mr. Wilcox believes that the plaintiff will improve when the proceedings conclude, provided that she is not subjected to any further abuse by the defendants or anyone else.

10. I accept the plaintiff's evidence that on a number of occasions since the original incident and up to about four weeks prior to the hearing of the appeal, she has been subjected to serious verbal intimidation by the first and second defendants and that such conduct has significantly impaired her recovery. It is evident that conviction in the District Court for assaulting the plaintiff and Judge Murphy's assessment of substantial damages against them

11. Mrs. Dunne, in evidence, admitted having struck the plaintiff and having pulled her hair but denied that she had pulled it out from the scalp in tufts. She contended that she was angry because the plaintiff had called her son, Thomas, an English knacker. I reject that evidence. A woman described as being a timid, quiet lady by her G.P. would be most unlikely to bandy abuse with a large man perched menacingly on her fence at the time. Mr. Dunne Senior in evidence swore that he had played no part in the events complained of at all and was in his house throughout the entire of the episode. I am satisfied that his evidence was a tissue of lies and that he encouraged his wife as she beat the plaintiff and also exacerbated the original incident and has added to the plaintiff's fear and distress since then by hurling vulgar and painful abuse at her whenever the opportunity has presented itself.

12. The worst feature of the Dunnes' defence has been the despicable conduct of one or other or all of them in causing 15 year old Yvette Dunne to perjure herself by giving a false account of events in support of the defendants - in particular her father. She was patently distressed throughout her evidence and she conceded that what she would say in Court had been discussed with her.

13. I have no doubt as to the veracity of the plaintiff's evidence which is amply borne out by independent testimony. I reject the evidence of the first and second defendants and also that of their daughter, Yvette, who has been caused to lie on their behalf. The third defendant did not give evidence.

14. The plaintiff's physical injuries cleared up in a comparatively short time, but the post-traumatic stress disorder caused by a grievously vicious physical and psychological attack on her by all three defendants on 24th April, 1994 has been exacerbated and her recovery has been undermined by repeated further attack of verbal personal abuse of a particularly distressing nature directed at the plaintiff by the first and second defendants up to the present time. If that course of conduct by them continues in the future, then the probabilities are that the plaintiff's psychological state will deteriorate further and in that event the damages I award today will require to be re-assessed and increased in the light of such events. Accordingly, I assess damages against the first and second defendants jointly and severally as follows:-

15. As to the third named defendant: it appears that he returned to England soon after the original assault and there is no evidence that he participated in any further abuse of the plaintiff since then. Accordingly, I assess damages against him at £12,000.00 jointly and severally with the first and second defendants.

16. Although injunctive relief has not been claimed on behalf of the plaintiff, I am satisfied that in the light of continuing verbal abuse of her by the first and second defendants and in the interest of justice having regard to the serious psychological effect of such attacks on the plaintiff, I injunct all three defendants and any other person or persons acting on their behalf from abusing, intimidating, assaulting or threatening the plaintiff or any member of her family. I adjourn this appeal generally with liberty to the plaintiff to have it re-entered before me if the terms of the foregoing injunction are infringed by any person affected by it. In that event I will, inter alia, assess such further damages as are appropriate in the circumstances in the light of whatever additional physical, psychological or mental harm may have been done to the plaintiff. I shall also consider the question of penalty for contempt of court and whether I should refer the matter to the Director of Public Prosecutions for consideration of a criminal prosecution by him.

17. I wish to make it clear to the defendants that if they or any of them persist in the ill-treatment of the plaintiff or her family, severe consequences for them will follow.