Court rejects ex prison officer’s action over dismissal 30 years ago

A legal action by a former prison officer over his alleged wrongful dismissal more than 30 years ago has been dismissed by the High Court.

Mr Justice Mark Sanfey said the “extraordinary delay” in prosecuting Sean O’Brien’s action against the Minister for Justice and the State meant it should be dismissed.

Mr O’Brien had also claimed damages for injury sustained during an attempted escape by a high security political prisoner in Portlaoise Prison in September 1988

He said he recaptured the prisoner after he escaped from the custody of other officers but was subjected to gunfire in his immediate vicinity from Army personnel who were also trying to prevent the escape.

He was dismissed in 1989 and brought High Court proceedings two years later seeking declarations including that his dismissal was invalid. He claimed as a result of the negligence of the defendants in the course of the shooting, he suffered severe stress, trauma and psychological disturbance.

He alleged the defendants also permitted information in relation to his family to be released or made available to high security political prisoners. He received psychiatric treatment which caused him to be absent from work.

In May 1989, the prison governor dismissed him in a letter saying it was due to his absenteeism.

The defendants denied he successfully recaptured the prisoner who escaped and also denied the circumstances in which he claimed the incident occurred. They further denied he suffered psychological disturbance.

They said he had received a total of six written warnings about his absenteeism and his unsatisfactory sick leave record between April, 1983 and July of 1986.

He was informed on at least three occasions that his job would be at risk unless his record improved until he got his final written warning in May 1989.

Between 1980, when he first started in the service as a probationer, and 1989, he was absent a total of 682 days, the defendants said. It included 1983 when he was absent for 187 days.

Mr O’Brien instructed new solicitors in 2017 who, apart from taking up the dismissal/peronsal injury case, also sued the previous firm of solicitors he had for alleged negligence.

Mr O’Brien said he had had certain difficulties with the previous solicitors and also claimed he had suffered badly from post traumatic stress disorder, was suicidal and not in any fit state to give instructions to any solicitors.

The defendants said there was a 26 year gap between when they (defendants) served a notice on him seeking particulars of the alleged wrongs and the service of a notice of his intention to go ahead with the case in February 2020. This delay was “plainly inordinate” and inexcusable, they said.

Mr Justice Sanfey said the delay has caused considerable prejudice to the defendants in the defence of the personal injuries element of the proceedings.

Even if witnesses could be found to all crucial elements of the alleged pursuit and capture of the prisoner — which if by Mr O’Brien’s account is accurate “deserves the highest praise” — recollection by those witnesses would necessarily be impaired 32 years later, he said.

It would also seem an impossible task for any medical expert for the defendants, examining Mr O’Brien for the first time in 2021, to come to conclusions about his alleged psychological disturbance.

Resolution of the wrongful dismissal claim would also require evidence from witnesses, including the then prison governor. But they will not now be available, the judge said.