The Gazette 1996

GAZETTE

JANUARY/FEBRUARY 1996

with reasonable diligence have discovered it.

References: 1. See generally, Des Rosiers, "Limitation Periods and Civil Remedies for Childhood Sexual Abuse", 9 Canadian Family Law Quarterly (CFLQ) 42 (1994). 2. Section 1 l(2)(a). Statute of Limitations 1957, as amended by section 3(2) of the Statute of Limitations (Amendment) Act 1991. 3. Section 3( 1), Statute of Limitations (Amendment) Act 1991. 4. Section 7, Statute of Limitations (Amendment) Act 1991. 5. [1991| 3 AER 949 (Court of Appeal); [19931 1 AER 322 (House of Lords). 10. |1993] 1 AER 322 at 329. 1 1. 96 DLR (4th) 289 (1993). 12. Op. cit., at f/n 1. 13. Section 1 I, Statute of Limitations 1957, was most recently challenged unsuccessfully in Tuohy v Courtney 1994 3 IR I. Other cases cited show that the Statute of Limitations was unsuccessfully challenged previously. It would seem, therefore, that legislative intervention may be unavoidable. *David Goldberg is a barrister practising both in Dublin and on the Cork Circuit. 6. [1991| 3 AER 949. 7. | I 9 9 3] 1 AER 322. 8. Cmd. 7740. 9. [1965| IQB 232.

dilemma in the context of child sexual abuse in Stubbings,

Bingham

LJ said that:

The relationship between parent and child was fiduciary and carried a duty to protect the well-being and health of a child. It would seem appropriate that this should and could be extended to claims against priests, teachers, instructors, doctors. The Canadian Court held that the Limitations Acts did not apply as it was an equitable action, which included breach of fiduciary duty. It is to be hoped that in similar circumstances, in considering the Stubbings and M(K) decisions, an Irish court would adopt the rationale of the Supreme Court of Canada and the English Court of Appeal over that of the House of Lords. Any decision has to be made having regard to the constitutional right of access to the courts for the vindication of personal rights. What would an Irish Court Decide?

"whilst there is a reluctance to see serious accusations of this antiquity ventilated in open court, there is a need to balance it against the plaintiff's right to public vindication". It is certain that neither the 1957 Act nor the 1991 Act were adopted with claims for child sexual abuse in mind. However, Des Rosiers 12 suggests it should not be necessary for the legislature to intervene as "the courts have all the tools to provide adequately for the evolution of the law in this matter". Only time will tell whether the courts can provide for such evolution within the present statutory framework." If not, there is likely to be public demand for legislative intervention to ensure that child sexual abuse victims are not statute-barred in seeking recourse to the courts for compensation by reason of delays solely arising as one of the predicable consequences of the trauma of such horrific wrongs done to them.

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