Claims for damages on behalf of a child allegedly assaulted and mistreated at the Links Creche in Malahide, and which was the subject of a programme on RTÉ, will be heard before a judge and jury, the High Court has confirmed.
Mr Justice John Hedigan refused an application by the owners of two Links Creches, Deirdre and Padraig Kelly, and the Health Service Executive, to set aside the notice of trial before a judge and jury.
The judge said the proceedings arose from the alleged assault, battery and mistreatment occasioned to young children including the infant plaintiff, Megan Walsh Bookey, who is suing through her mother Julianne Cullen.
He said they were attending the childcare facility Links Abington Malahide and most, if not all, of the children who are suing the defendants attended that part of the creche known as the “wobbler room”.
Judge Hedigan said the Malahide creche was one of three premises which had been the subject of a broadcast by the RTÉ Prime Time programme on May 28th, 2013.
The programme, entitled “Breach of Trust,” featured footage which had been recorded on RTÉ’s behalf in each of the premises investigated by an undercover reporter.
The footage recorded in the Malahide creche had been filmed around March 2013 and showed what had been described in the defence delivered in the proceedings as “inappropriate” behaviour where some staff yelled, swore at, pulled, flipped or pushed and generally mishandled the young pre-verbal children left in their care.
The judge said that as set out in the claim, the creches and their owners appear to have been alerted to the various incidents of assault, unwarranted bodily interference or restraint, mistreatment and intimidation which had been witnessed by the undercover reporter, some of which had been covertly filmed and ultimately broadcast by RTÉ.
He said that in addition to the Links Creche Southside Limited and the Links Creche and Montessori Limited, the creche owners Deirdre and Padraig Kelly had also been sued in view of the significant control that was exercised by them over the crèche and the activities of the staff employed there.
Judge Hedigan told Coleman Legal Partners, solicitors representing the child, that proceedings had also been commenced against the Health Service Executive in its capacity as the statutory body charged with the supervision of pre-school services.
Pleadings and particulars had been exchanged, a defence had been delivered, notice of trial served and the matter set down for trial by judge and jury. The defendants had sought an order setting aside the notice of trial by a judge and jury and a direction transferring the proceedings to the personal injuries list for trial by a judge alone.
Judge Hedigan said the plaintiff argued the case was predominantly one based on assault allegedly permitted through negligence and failure to properly supervise. The defendants argued there was significant doubt whether the conduct contended for might reasonably constitute intentional trespass.
“The defendants claim the whole case is about the failure to properly manage and thus care for the plaintiff. The plaintiff argued that everything was based upon assault and battery without which there was no case,” the judge said.
Judge Hedigan said the allegations of assault were the dominant aspects of the case.
“The parents saw images on TV of their daughter being, they allege, shouted at, pulled and pushed roughly,” he said. “This for a mother, in whose name these proceedings are brought, is in my view the most shocking aspect of the whole affair in which the defendants agree the plaintiff was subjected to inappropriate behaviour by their staff.”
The first and dominant claim from which the greatest part by far of the plaintiff’s case arose was the alleged assaults and in his judgment the right of the infant to a jury trial had been preserved.
The application to set aside the notice of trial before a judge and jury was refused.