Christine Dacosta v Mount Saint Agnes Academy

• Jurisdiction: Bermuda
• Judge: Mussenden J
• Judgment Date: 01 December 2023
• Court: Supreme Court (Bermuda)
• Year: 2023
• Docket Number: CIVIL JURISDICTION

Between:

Christine Dacosta

Plaintiff

and

Mount Saint Agnes Academy

Defendant

[2021] SC (Bda) 94 Civ.

CIVIL JURISDICTION

2021: No. 142

In The Supreme Court of Bermuda

Appearances:

Victoria Greening, Resolution Chambers Ltd., for Plaintiff

Kyle Masters, Carey Olsen Bermuda Limited, for Defendant

RULING

RULING ofMussenden J

Introduction

1 The Plaintiff caused a Specially Endorsed Writ of Summons to be issued dated 17 May 2021 (the “ Writ”) along with an Amended Statement of Claim dated 28 October 2021 (the “ ASOC”). She claims that when she was a student at the school run by the Defendant (the “ School”), a teacher Mr. DiGiacomo (the “ Teacher”), groomed and sexually exploited her during the period 1998 to 1999.

2 By a Summons dated 1 December 2021, the Defendant applied to strike out the Plaintiff's Writ and ASOC (the “ Strike-Out Application”) on the grounds that it was statute barred by virtue of the Limitation Act 1984 (the “ 1984 Act”) and thus discloses no reasonable cause of action and further, or in the alternative, is frivolous or vexatious or an abuse of process of the Court. The parties agreed on the utilisation of expert reports in the StrikeOut Application but did not agree on the remit of discovery for the purposes of the StrikeOut Application. The documents sought by the Defendant from the Plaintiff were agreed but the documents sought by the Plaintiff from the Defendant were not.

3 In a written Ruling dated 30 March 2023 in this matter (the “ March 2023 Ruling”), I refused the Plaintiff's application of specific discovery. In that Ruling, I set out the issues for the strike-out application, the factual background and the relevant provisions of the Limitation Act 1984, in particular section 34 ‘Discretion of court to exclude time limit in case of personal injury or death’.

The Application

4 The matter now appears before me on the Plaintiff's Summons dated 11 October 2023 for leave to admit the First Affidavit of Annette K. L. Cook (“ KL”) sworn 25 September 2023 (“ KL 1”) along with her Exhibit. The application is supported by the Second Affidavit of Ms. Greening sworn 28 September 2023 (“ Greening 2”).

5 KL set out that she was a former student of the defendant School during the period January to June 1985 when she was 15 years old. I note here that the time when KL attended the School was about 15 years before the material time of the Plaintiff's claim. She stated that the Teacher was her history teacher, that it was widely known in the School that he was a sexual predator and she was warned by teachers and students alike to be wary of him. She stated that the Teacher ran his fingers through her hair regularly and wished her happy birthday on a date that was transposed in error, by month and day. On another occasion, the Teacher slapper her on her bottom. He then told her, that if she told anyone then he would fail her history test. He then did fail her history test after which she told her mother. KL stated that she and her mother met with Sister Judith who reviewed the history test and then changed her mark. Sister Judith then explained that the Teacher was being supportive but that she had overreacted, such explanation causing her to feel dismissed.

6 KL stated that on 25 October 2019 she was in a doctor's waiting room when she read two exhibited articles in the Royal Gazette on her phone entitled “ The scars are still deep” and “ Bishop will act if more victims emerge” about the Plaintiff. The purpose of the article was to provide contact details for the School if any other students wanted to file a report about the Teacher. She immediately called the Bishop and left a detailed message on his voicemail and requested a return call. She made 4 further calls leaving voicemails. The next day she the Plaintiff a Facebook to tell her brave she was to come forward.

7 For a period on and after 31 October 2019, KL sent emails and made phone calls eventually receiving a reply from the Bishop when they then discussed the possibility of a meeting which never took place. KL also reported the matter to the police and is scheduled to give evidence in the criminal prosecution of the Teacher. A few months later, KL states that she bumped into Sister Judith in a supermarket when she informed her that she had been trying to reach someone at the School in relation to the Teacher. To date, she has heard nothing further from the School or the Bishop.

8 Greening 2 set out that KL 1 was being filed at this point because she only came forward and offered to write a statement on 16 September 2023. She stated that the contents of KL 1 are relevant to the proceedings.

The Law

The Limitation Act 1984

9 Section 12 of the 1984 Act provides as follows:

Time limit; personal injuries or death

• “12 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies. An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( 4) or (5).

• (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

• (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( 4) or (5).

• (4) Except where subsection (5) applies, the period applicable is 6 years from—

  • (a) the date on which the cause of action accrued; or

  • (b) the date of knowledge (if later) of the person injured,

  whichever is the later.

10 Section 34 of the 1984 Act provides as follows:

Discretion of court to exclude time limit in case of personal injury or death

• “34 (1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

  • (a) section 12 or 13 prejudice the plaintiff or any person whom he represents; and

  • (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

  the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

• (2) The court shall not under this section disapply section 13(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 12.

• (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to —

  • (a) the length of, and the reasons for, the delay on the part of the plaintiff;

  • (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section...