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with reasonable diligence have
discovered it.
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.
What would an Irish Court Decide?
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.
More specifically addressing this
dilemma in the context of child
sexual abuse in
Stubbings,
Bingham
LJ
said that:
"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.
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).
6. [1991| 3 AER 949.
7. | I 9 9 3] 1 AER 322.
8. Cmd. 7740.
9. [1965| IQB 232.
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.
•
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