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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mulvey (A Minor) v. McDonagh [2004] IEHC 48 (26 March 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/48.html Cite as: [2004] IEHC 48, [2004] 1 IR 497

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Mulvey (A Minor) v. McDonagh [2004] IEHC 48 (26 March 2004)

 
THE HIGH COURT

No. 6187P/99

BETWEEN

NICOLA MULVEY (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND MARGARET MULVEY

PLAINTIFF

AND MARTIN MCDONAGH

DEFENDANT

JUDGMENT delivered by Johnson J. on the 26^th day of March 2004.

In this case the plaintiff who resides with her mother at 12 Ashwood Avenue, Clondalkin, Dublin 22 and is now aged 10 sues the defendant who is the agreed nominee representing the interests of Scoil Nano Nagle, Bawnogue, Clondalkin, Co Dublin, claiming damages in respect of personal injuries suffered by the plaintiff whilst attending the school as a 4 year old on the last day of her first year.

The claim is in respect of damages alleged to have been suffered by the plaintiff as a result of an assault by a fellow pupil or pupils of the said school on the 25^th day of June 1998 and the claim is made against the defendant in that, being the managers of the school, they were negligent in the failure of the school to monitor the conduct of the pupils therein. This is exemplified in that the plaintiff claims she had been bullied since the previous October, and complaints had been made on numerous occasions to the school, and the perpetrator of the assault had in fact assaulted the plaintiff the day previously, and the plaintiff had reported the matter to a Sister at the said school the said previous day but not withstanding same, a further assault took place the following day, namely on the 25^th June.

In essence therefore the allegations made by the plaintiff are that the defendant was negligent in their failure to prevent the plaintiff being assaulted and bullied over a long period.

The plaintiff who was booked in by her parents to go to Scoil Nano Nagle in September 1997 had a history of ill health for some considerable length of time. She was an only child, aged 4. She suffered from asthma, eczema and in addition had an anaphylactoid reaction to certain matters.

This as can be appreciated caused a great deal of concern and prior to September there were six meetings between Mrs. Mularkey, the principal of the school, and Mrs. Mulvey to make arrangements in respect of the plaintiff coming to school.

It became necessary because of her condition to have the principal plus two other teachers trained in the use of injections for the plaintiff in the event of a shock taking place and a hypodermic, together with the correct solution, was maintained in the school at all times so that in the event of the plaintiff getting a shock, she would be treated.

In addition to that, Sister Gemma, the class teacher visited the plaintiff in her home prior to the opening of school to meet her and to put her at her ease.

The evidence of the plaintiff in support of her claim came mainly from her mother and herself. Mrs. Mulvey described how a very early deterioration in the behaviour of the plaintiff at home, namely the use of bad language and inappropriate behaviour caused a great deal of worry. She said the plaintiff became very insecure. Mrs. Mulvey then went and said she watched the school yard and saw the plaintiff being beaten up on a regular basis. She said she complained to Sister Gemma on six or seven occasions. In November, an incident took place involving the plaintiff having her tracksuit trousers pulled down.

This incident was reported to Mrs. Mulvey who reported it to Sister Gemma. Sister Gemma, as a result of what she was told by Mrs. Mulvey identified the perpetrator, brought her to school with her mother and a meeting took place between the plaintiff, the next friend and the perpetrator and her mother had been involved in the negotiations. An apology was made and all would appear to have been forgiven. It is necessary to remember that the children involved in this were 4 years old at this time.

In December on the last day of that term, Mrs. Mulvey went to Mrs. Mularkey, the principal, and complained to her of the incidents that had taken place during the term. Mrs. Mularkey indicated to her that it was her last day as principal, she was retiring and that the matter should be taken up with Mrs. Sweeney who was the principal taking up duty on the next term.

An appointment was made and on the 9^th January, Mr. and Mrs. Mulvey met with Mrs. Sweeney and made the complaints herein before referred to. Mrs. Sweeney said she would deal with the matter and indicated that:

1. She would put an extra teacher on the school yard.

2. She would monitor the thing herself personally.

3. Arranged to meet Mrs. Mulvey again on the 24^th January.

These matters were put in place and the meeting of the 24^th took place. It was further agreed that in the event of Mrs. Mulvey having any further complaints that they would be made directly to Mrs. Sweeney, the principal.

On the 3^rd February, Mrs. Mulvey indicates that she went to the classroom where Nicola was sitting, that she asked Sister Gemma for permission to address the class, that she there, in her own words indicated that she berated them, gave out to them for their treatment of Nicola and said that if they didn't stop doing it she would "kick them up the backside". This was witnessed by Sister Gemma and Mrs. Sweeney. No further communications took place between the plaintiff Nicola, her mother with anyone until the incident the subject matter of these proceedings, when complaint was made by Mr. and Mrs. Mulvey in or about the 25^th June. However, as is quite clear from the evidence, Mrs. Mulvey maintains that the beatings continued which she continued to witness in the school yard.

However on the 25^th June which was the last day of the term, Mrs. Mulvey collected Nicola from school and Nicola was crying. She said that Sister Gemma said that Nicola had been hit in the line when they were lining up to leave the classroom and that she had found out who had done it and some dispute had taken place as to who had hit who. Mrs. Mulvey said that Nicola had indicated to her that she had been beaten up in the yard by a number of other people and kicked. Mrs. Mulvey said Nicola was sick, vomited and she was taken to Crumlin hospital. Mrs. Mulvey also indicated that Nicola was covered in bruises and she had been covered in bruises for some considerable length of time, prior to this date. It is as well to note that Nicola had been in hospital for some time before this period and had been in hospital on a regular basis and there does not appear to have been any indication of bruising at that time.

Nicola was taken to hospital and was released two days later.

Mr. Mulvey then wrote a letter to the school setting out all the complaints indicating he was going to take legal advice and go to the guards.

Nicola when she gave evidence agreed with her mother and backed up what was said. She also indicated there were incidents when she was hit on the head by a bowl and incidents where her lunchbox was taken. She claimed that this was done on a regular basis. Nicola agreed in almost every word with the evidence of her mother and despite the fact that she was now 10 appeared to have an extraordinarily good recollection of what took place when she was 4.

The evidence of the plaintiff and her mother was then supported by the evidence of Dr. Paul McQuaid and Professor Mona O'Moore. Dr. McQuaid and Professor O'Moore were very impressed with the plaintiff and her mother and Professor O'Moore spoke at length about the evils of bullying and the necessity to deal with it and the methods which can be used to deal with it. Dr. McQuaid and Professor O'Moore, they believed that the plaintiff and her mother, however, I reiterate, they only heard the plaintiff and her mother and did not have an opportunity of witnessing the witnesses for the defence nor the manner in which they gave evidence.

Dr. Costigan was then called. He is the paediatrician from Crumlin and he dealt with the plaintiff on her admission on the 25^th June and there are two things that are necessary to note from this of importance:

(a) Despite the claim and the Statement of Claim there was no damage

to the spleen or no rupture of the spleen.

(b) There was no bruising whatsoever on any part of her body.

With regard to this particular incident it is very necessary to note the bruising, for had any noticeable bruising been noted on the plaintiff then it would have become a social matter for the hospital and it would have been investigated.

On behalf of the defendants the evidence was that of Mrs. Mularkey, the principal of the school until Christmas, who said that she had been involved in the school, that she had dealt with the plaintiff before the term commenced and she was well aware of the delicacy of the situation regarding the plaintiff.

She said that she was not made aware of any incident until such time as the trouser pulling incident was involved in November.

She said that Sister Gemma had dealt with that to her satisfaction and no further incident or complaint was brought to her attention until the last day of term as above mentioned.

She said, and I am satisfied, that Mrs. Sweeney had no input whatever into the incident of the trousers.

This is despite the fact that Mrs. Mulvey was emphatic that Mrs. Sweeney had partaken in that particular incident.

Sister Gemma then gave evidence saying that she was the class teacher, gave evidence of her experience in dealing with 4 year olds, which was extensive and that she was totally aware of the difficulties of integrating children and of the difficulties they had in that first year in school.

She was also deeply aware of bullying, as indeed was Mrs. Mularkey and the school had provided documents for the parents, had attended seminars and they were all very concerned about the question of bullying.

Sister Gemma swore that the first incident that was brought to her attention was the incident of the trouser pulling, that she dealt with that matter and she says that no other complaint was made to her by Mrs. Mulvey in the first term. She said that she was there every day and that no report came from the teachers patrolling the school yard about any untoward incidents taking place. She herself was particularly aware of the children in her class, she kept an eye on them and in particular she kept an eye on Nicola because of the fact of Nicola's medical condition and nothing untoward occurred to her in that term. She was made aware of the complaints of Mrs. Mulvey at the end of the term. It is as well to note that no complaint was made by Nicola according to this witness.

The second term began and she had no problems and there were no complaints made to her. When on the 3^rd February Mrs. Mulvey came into the classroom, Sister Gemma specifically denies that any request was made for Mrs. Mulvey to address the class. She said Mrs. Mulvey came into the class and, using the same word, berated the class and gave out to them and said that she would give them a kick on the backside if they didn't leave Nicola alone. Sister Gemma was quite clearly shocked by this behaviour, as indeed was Mrs. Sweeney who came into the classroom towards the end of the address.

Both Mrs. Sweeney and Sister Gemma were quite clearly distressed at this incident and steps were taken to ensure it would not happen again.

Sister Gemma said that no further incident took place and no complaint was made from the 3^rd February to the 25^th June when the incident alleged in the Statement of Claim took place. She said that there was an incident in the classroom where one of the girls hit the plaintiff.

She said she found out who it was and tried to deal with it there and then. She said that Nicola was in tears when her mother came.

She said as far as she was concerned only complaints that she had received from Mrs. Mulvey during the year was:

1. The trouser pulling incident.

2. The address to the class.

3. The incident regarding the 25^th June.

Sister Gemma also gave evidence regarding the fact that she, along with the other teachers, partook their normal roster of duties in monitoring the yard and indicated that she had seen nothing untoward in the course of the year happening to Nicola in the yard. I found that Sister Gemma in particular appeared to me and struck me as being a truthful, conscientious and extremely concerned person and a good and honest witness.

In addition the defendants called Mrs. Sweeney, the new principal of the school, who indicated that she had participated in the running of the school in the first term as assistant principal; she had partaken of her duties in monitoring the yard, that she was aware of the difficulties with Nicola's health.

Mrs. Sweeney said she was not involved in the trousers incident.

After Christmas as a result of her meeting with Mrs. Mulvey she increased the number of teachers or assistants in the yard to monitor the school behaviour by one, so that were now always, at all material times two teachers in the yard, that she met again with Mrs. Mulvey on the 24^th January. At that meeting it was indicated by her that Mrs. Mulvey had no complaints between 9^th and the 24^th and it was agreed that if she had any complaints that those complaints would be make directly to Mrs. Sweeney.

The next matter that occurred was the fact that she had come into the classroom when Mrs Mulvey was finishing her address to the pupils.

She was very upset by this and tried to ensure it would not happen again. She continued to monitor the yard and continued to ensure that there were two teachers there and no further complaint was heard by her from then until the 25^th June.

Mrs. Sweeney was extremely aware of bullying and was very conscious of her duties and of the vulnerability of children to bullying and of the steps to be taken to prevent bullying. It may not have been in total agreement with Professor O'Moore, but she was certainly extremely conscious of the necessity to monitor any potential bullying and of the responsibilities of teachers in dealing with it.

Monitoring of the school yard was consistent throughout the year and as stated above she had two teachers in the yard after Christmas.

And the two teachers involved in the yard after Christmas were Ms. Freda McGrath and Ms. Caoimhe Warren. This was supported by Mrs. Mularkey who also had done the yard duty, before her retirement. None of these witnessed any of the incidents of which the plaintiff and her mother complained.

There are a number of incidents in which there is a direct contradiction between the plaintiff's evidence and the defendant's evidence. I have had the opportunity and in this case of watching the witnesses in court, of seeing them give evidence and of watching their reactions in the witness box under cross examination. I also have taken the opportunity of visiting the school yard and I am satisfied that it is an open yard, not very large, in which any adult would have no difficulty in observing incidents as described by the plaintiffs taking place.

I am satisfied that the evidence given by the defendants, which of course neither Dr. McQuaid or Professor O'Moore had an opportunity of seeing was extremely convincing and I am satisfied the defendants and each of them were responsible, caring, alert, concerned and truthful people.

They accepted quite clearly that some of incidents had taken place during the year but in regard to the facts where there was a dispute between the plaintiff and her mother and the defendants I am satisfied, having had the opportunity of watching both of them and listening to them, that the defendants version of the evidence of what took place is far more reliable and acceptable and I so find. Particularly I find as follows:

1. Only one complaint was made to Sr. Gemma in the first term.

2. I am satisfied that no request was made to Sr. Gemma on February 3^rd for liberty to address the class.

3. Despite the suggestion put to Sr. Gemma that she had been given the names of other perpetrators of these alleged offences I am satisfied that no name other than the name in respect of the pulling down of the trousers incident was given to Sr. Gemma.

4. I am satisfied that the plaintiff was not covered in bruises as alleged by the plaintiff's mother, for had that been so I have no doubt that the examination in Crumlin Hospital would have revealed it.

The Law

The law in this case would appear to be accepted by both sides, namely that the degree of care to be taken is that of a prudent parent exercising reasonable care and I accept that that must be taken in context of a prudent parent behaving reasonably with a class of twenty eight 4 year olds having their first experience of mingling socially with other children.

I am satisfied that this care was taken. I think the suggestion that there should be a further and higher degree of liability, namely that of professional negligence, is a situation which has not yet been achieved in Irish law. I think that the principles as laid out in recent decisions in England and Scotland would appear to indicate more that the approach should be that of professional negligence. However I do not think we can adopt the principles laid down in Scott v The Lothian Regional Council Outerhouse, Scotland (29^th September, 1998) "where he applied the test as to whether it had been proved to be guilty of such a failure as no guidance teacher of ordinary skill would be guilty if acting with ordinary care".

Messrs. Mc Mahon and Binchy state "the problems of care and control in a school bear some resemblance to those confronting a parent in the home but they are far from identical. It is possible that in a future decision in Irish court will drop the reference to careful parent and stress the fact that it is the standard of the reasonable school teacher or manager which should prevail".

The definition of bullying which appears not to have been disputed between the parties to any great extent is contained in the guidelines on Encountering Bullying Behaviour in Primary and Post Primary Schools, September 1993 and bullying is defined as

"Bullying is repeated aggression, verbal, psychological or physical conducted by an individual or group against others. Isolated incidents of aggressive behaviour which should not be condoned can scarcely be described as bullying.

However when the behaviour is systematic and ongoing it is bullying."

I accept and adopt that definition of bullying.

The claim is brought in respect of a single incident which occurred on the 25^th June, 1998 when the plaintiff was alleged to have been assaulted by fellow pupils in the school.

Having considered all the evidence in the matter I am quite satisfied that the incident did not take place as described by the plaintiff, that the injuries alleged to have been suffered, were not suffered. Any incident which may have taken place did not result in the personal injuries claimed by the plaintiff and certainly was not as a result of any negligence or breach of duty on the part of the defendants or any of them, under these circumstances I therefore dismiss the plaintiff's action.