The Court of Appeal (CoA) has rejected a legal action of a prison officer who claimed a bullet narrowly missed him when a firearm was discharged by an Irish Army soldier during an attempted escape by a paramilitary prisoner from Portlaoise prison some 34 years ago.
The court dismissed an appeal by Sean O’Brien (62), who was stationed at the high-security Portlaoise facility since becoming a prison officer in 1980, because of a 26-year delay in prosecuting the case.
In May 1988, he was allegedly involved in the capture of a paramilitary prisoner who attempted to escape. As a result of a bullet allegedly narrowly missing him during that incident, he says he developed post-traumatic stress disorder (PTSD). The circumstances of the incident were fully in dispute.
He was dismissed from his job in May 1989 following six written warnings about his absenteeism. During the course of some nine years’ employment, he was absent for 782 days, more than two years in total, according to the Prison Service.
Some of his earlier absences, pre-dating the escape incident, were allegedly the result of an injury to his left hand from an accident at work in 1983.
Following his dismissal, he sued the Minister for Justice and the State in 1991 claiming his dismissal was invalid and also claiming personal injuries arising out of the 1988 shooting incident.
The last step taken in his proceedings was in August 1993 when the defendants, who had entered a full defence, sought more details of his claim. There was never any reply to this.
In 2017, 24 years later, Mr O'Brien instructed new solicitors from Belfast and those solicitors, in 2019, served a notice of intention to proceed.
The defendants then asked the High Court to dismiss the case for delay.
Mr O’Brien said he was never consulted by his solicitors about the 1993 request for further details and afterwards he got another firm of solicitors before subsequently getting a third firm.
He also said the solicitor representing him was struck off and that at that stage he was suffering from severe depression and his PTSD had intensified. He said he was suicidal and was not in any fit state to give instructions to any solicitors.
In January last year, the High Court dismissed his case for delay.
During part of those 26 years, around 2011, former Prison Officers Association general secretary, PJ McEvoy, became significantly re-engaged in Mr O'Brien's case and his case was raised with the minister by two TDs, Niall Collins (FF) and Martin Ferris (SF).
Following the High Court’s dismissal of his claim, Mr O’Brien appealed the decision to the CoA.
Mr Justice Seamus Noonan, on behalf of the three-judge CoA, dismissed the appeal saying the defendants were heavily prejudiced in their ability to defend the case because of the delay in prosecuting it.
He said the vast majority of Mr O’Brien’s absent days predated the shooting incident and were unrelated to it.
There was also a serious factual dispute about the reasons for that particular absenteeism. Witnesses for the defence cannot reasonably be expected to give evidence that could be regarded as reliable after such an interval, he said.
Another matter of potentially significant prejudice to the defendants was that no meaningful medical examination of Mr O’Brien’s psychiatric complaints can now be conducted by the defendants.
“It would, quite simply, be impossible for any psychiatrist now examining the plaintiff to determine whether whatever complaints he now manifests are the result of something that happened 34 years ago”, he said.
The situation was made even worse in this case by virtue of the fact that Mr O’Brien’s treating psychiatrist over a 30-year period made it clear there were other factors in his life that had a major bearing on his current psychiatric symptoms, he said.
A crucial component of his claim concerns the precise circumstances of the shooting incident which appear to be in considerable dispute, the judge said. Witnesses would be asked to bring to mind events of the distant past, with little realistic prospects of this being done reliably, he said.
He was satisfied the High Court was perfectly correct to reach the conclusion that no satisfactory or credible explanation was offered by Mr O’Brien for this inordinate delay in his case which must therefore be regarded as inexcusable.
