Beyond the Personal Injuries Guidelines:
Kemmy v. Murray & Anor – Establishing an Autonomous Common-Law Framework for Damages in Child Sexual Abuse Claims

1. Introduction

In July 2025 the Irish High Court, per Egan J., delivered a landmark judgment in Kemmy v. Murray & Anor ([2025] IEHC 421). While the case is tragic in its facts—chronic rape of a foster child by her foster father—its legal significance reaches far beyond individual compensation. The Court squarely confronted a question that had lingered since the adoption of the Judicial Council Act 2019 and the Personal Injuries Guidelines (“the Guidelines”): Do those Guidelines govern the assessment of damages in intentional torts such as child sexual abuse? The judgment answers “No”, carving out an autonomous common-law methodology and clarifying the inter-relationship of four key statutes.

Parties:
• Plaintiff: Ms. Kelly Kemmy, survivor of prolonged sexual abuse.
• First Defendant: Mr. Stephen Murray, foster father and convicted rapist (in default).
• Second Defendant: Tusla – The Child and Family Agency (settled pre-trial).
• Attorney-General: Invited as legitimus contradictor to argue the statutory issue.

Core issues:
(1) Applicability of the Personal Injuries Guidelines to civil claims for child sexual abuse;
(2) Method of quantifying general damages where the Guidelines do not apply;
(3) Interaction between a mediated settlement with one defendant (Tusla) and liability of another concurrent wrongdoer (Murray).

2. Summary of the Judgment

• Guidelines Exclusion: The Court held that actions grounded in assault, battery, rape, false imprisonment and trespass to the person fall outside the definition of a “personal injuries action” in s.2 Civil Liability & Courts Act 2004; consequently the statutory duty to “have regard to” the Guidelines (s.22 as amended 2019) is inapplicable.
• Quantum Approach: Adopting the framework in MN v. SM [2005] 4 IR 461, Egan J. awarded €450,000 general damages (325k to date + 125k future) plus €128,000 special damages, totalling €578,000, before statutory set-off.
• Concurrent Wrongdoers & Set-off: Because Tusla and Murray were concurrent wrongdoers under s.11 Civil Liability Act 1961, the €250,000 settlement with Tusla was deducted (s.17), leaving net judgment of €328,000 against Murray.
• Upper-Limit Doctrine: The Court recognises €550,000 as the contemporary “cap” on general damages (paralleling the Guidelines) but stresses discretion below that ceiling.

3. Detailed Analysis

3.1 Precedents & Statutes Cited

The Court synthesised four strands of authority:

1. Common-Law Cases
   • MN v. SM (2005): First appellate framework for child sexual abuse damages; emphasised continuum of abuse, developmental stage, and rape as “most serious injury”.
   • Sinnott v. Quinnsworth (1984): Introduced “upper limit” concept for general damages.
   • Morrissey v. HSE (2020): Modern articulation of proportionality and €500k cap (pre-Guidelines).
   • Further comparators: Hickey v. McGowan (2017), Brennan v. Mullan (2015), AB v. HSE (2022) etc., to locate the present award on the existing spectrum.
2. Legislation
   • Civil Liability Act 1961 – definitions of “personal injury”, “wrong”, concurrent wrongdoers, set-off (ss.11-17).
   • Personal Injuries Assessment Board Act 2003 (“PIAB Act”) – procedural bar and extended definition of “civil action”.
   • Civil Liability and Courts Act 2004 – defines “personal injuries action”, crucially excluding claims including false imprisonment or trespass to the person.
   • Judicial Council Act 2019 – inserts duty (s.99) to consider the Guidelines but only in a “personal injuries action”.

3.2 Court’s Legal Reasoning

(a) Statutory Interpretation Exercise

The pivotal reasoning unfolded in three steps:

1. Step 1 – Scope of 2004 Act: Because s.2 expressly excludes actions “where the damages claimed include … false imprisonment or trespass to the person”, child sexual abuse claims—almost invariably pleaded in intentional tort—fall outside the Act.
2. Step 2 – Consequence of Exclusion: The 2019 amendment that obliges courts to apply the Guidelines is embedded in s.22 of the 2004 Act. If the claim is not a “personal injuries action”, the duty never arises.
3. Step 3 – Harmonising with PIAB Act (Clarke v. O’Gorman): Egan J. accepts the “untidy” reality that a claim can require PIAB authorisation yet be free of 2004-Act procedural strictures—a view blessed by the Supreme Court in Clarke.

(b) Quantum Methodology Post-Guidelines

With the Guidelines sidelined, the Court revived the MN criteria and layered them with proportionality principles from Morrissey. Crucial evaluative factors:

• Nature, timing, duration & escalation of abuse (hundreds of rapes over 7 years).
• Psychiatric sequelae (diagnosed chronic PTSD, dissociation, hyper-vigilance).
• Life-long functional impact (education derailed, motherhood, trust issues).
• Absence of aggravated/exemplary damages (not pleaded), necessitating careful calibration within compensatory head only.

(c) Concurrent Wrongdoer Analysis

• Because both defendants were “responsible … for the same damage” (s.11(1) 1961 Act) they are concurrently liable.
• The €250k Tusla settlement exceeds any hypothetical contribution share; therefore, under s.17(2), that amount is set-off in full.

3.3 Anticipated Impact on Irish Tort Law

The ruling is likely to have four systemic consequences:

1. Formal Carve-Out: Courts may henceforth treat all intentional tort claims (assault, battery, false imprisonment, rape) as outside the Guidelines, compelling practitioners to revert to common-law comparators.
2. Quantum Re-calibration: Guidance that the prevailing “cap” (€550k) is still relevant—even when the Guidelines do not govern—ensures synchronisation between intentional-tort quantum and the broader landscape of catastrophic injury awards.
3. Procedural Strategy: Litigants will be alert to the PIAB/2004 bifurcation—authorisation still required, but pleadings and evidence freed from certain 2004-Act constraints (e.g., s.12 particulars, s.26 affidavits).
4. Settlement Dynamics with State Bodies: The judgment illustrates how sizeable State settlements (>40% of projected total) can insulate defendants against further contribution, influencing negotiation tactics.

4. Complex Concepts Simplified

Personal Injuries Guidelines

A judicial tariff (2021) prescribing monetary bands for specified injuries. Courts must “have regard to” them only in a “personal injuries action”.

Personal Injuries Action vs. Civil Action

Under the 2004 Act a “personal injuries action” is a negligence-based claim excluding deliberate torts like assault; the PIAB Act uses a broader term “civil action”.

Upper Limit / Cap on General Damages

Judge-made ceiling on pain-and-suffering awards, periodically adjusted for economic conditions (€550k in 2025).

Concurrent Wrongdoers

Two or more defendants liable for the same damage. A settlement with one triggers a statutory set-off against the other(s).

Aggravated vs. Exemplary Damages

Extra-compensatory sums: aggravated reflect particularly humiliating conduct; exemplary (punitive) seek to deter. They must be pleaded or clearly signalled.

Dissociation

A trauma response where a person detaches from reality; paradoxically masks distress and complicates therapy.

5. Conclusion

Kemmy v. Murray & Anor inaugurates a clear doctrinal boundary: the Personal Injuries Guidelines, though central to negligence litigation, do not apply to intentional torts involving sexual abuse. Egan J. restores the primacy of MN v. SM for assessing damages, while modernising the quantum by reference to the updated €550,000 cap. The judgment also showcases meticulous statutory interpretation and provides a practical roadmap for dealing with multi-defendant settlements under the 1961 Act.

Beyond doctrine, the decision affirms the judiciary’s sensitivity to the unique pathology of child sexual abuse—recognising that its harm transcends psychiatric labels and demands a bespoke, victim-centred calculus. Future litigants and courts will likely cite Kemmy as the definitive authority whenever the Guidelines’ reach is in doubt, and as a benchmark for high-value awards in the gravest of sexual abuse cases.