Girl who claims she was sexually assaulted aged five by child of similar age seeks to sue creche

The intended defendant creche has agreed to orders for preservation of evidence but opposed an inspection application. File photo

A five-year-old girl who was allegedly sexually assaulted by a child of a similar age in a creche, is seeking to sue in the High Court.

She claims the play equipment storage shed in which the incident allegedly happened was unsupervised.

The girl, now eight, who is seeking to sue through her adult "next friend", has been refused permission by the court to inspect what is said to be important evidence need to take her case.

The inspection was sought so that the statement of claim for alleged negligence could be prepared.

The evidence she sought to inspect is the garden shed itself, any CCTV footage of the incident and accident/incident report forms, witness statements and contemporaneous notes and records relating to the alleged incident.

It is claimed the girl suffered both physical injuries and a considerable psychiatric injury as a result of the alleged sexual assault.

The intended defendant creche has agreed to orders for preservation of evidence but opposed the inspection application. 

Court ruling

In a ruling, Ms Justice Emily Egan said she was not satisfied that the relevance of any of the three categories of evidence had been adequately established at this stage of the proceedings.

"Nor am I satisfied that it has been demonstrated that the proposed inspection is necessary or expedient," she said.

She was also not satisfied that a Tusla report into the incident greatly assisted the plaintiff in this application.

Once the pleadings have been exchanged, and if the defendant disputes liability, it is likely that the evidence sought will be relevant to the matters in issue and that the inspection sought will be established as being necessary and expedient, the judge said.

She therefore concluded that the application for inspection was premature.

However, she said the present application can be renewed following the exchange of pleadings and rather than dismiss the current application, she adjourned it with liberty to re-enter once pleadings are closed.