AB v Chi

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 23 September 2022
• Neutral Citation: [2022] IECA 211
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No 2021/328

Between

AB

Plaintiff/Appellant

and

Children's Health Ireland (CHI) at Crumlin

Defendant/Respondent

[2022] IECA 211

Donnelly J

Ní Raifeartaigh J

Collins J

Court of Appeal Record No 2021/328

THE COURT OF APPEAL

CIVIL

Unapproved – No further redactions

JUDGMENT of Mr Justice Maurice Collins delivered on 23 September 2022

PLEASE NOTE THAT ON 25 MARCH 2022 THE COURT MADE AN ORDER PURSUANT TO SECTION 27 OF THE CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 PROHIBITING THE PUBLICATION OR BROADCAST OF ANY MATTER RELATING TO THE PROCEEDINGS WHICH WOULD, OR WOULD BE LIKELY, TO IDENTIFY THE PLAINTIFF AS HAVING AN IDENTIFIED GENETIC DISORDER.

1 This appeal raises important issues about the discovery of family communications.

BACKGROUND

2 The background facts can be stated relatively briefly. The Plaintiff's family has a history of a specific genetic disorder. In October 2017, the Plaintiff underwent genetic testing in the Defendant hospital ( “the Hospital”) to ascertain whether she suffered from that disorder. She was 18 at the time and thus an adult.

3 The Plaintiff says that, when attending the Hospital for those tests, she made it clear that she did not wish her test results to be communicated to her father, from whom she is said to be estranged. She says that she was assured that the results would remain confidential as between herself and the Hospital.

4 The results of the tests appear to have become available late November/early December 2017. Unfortunately, the results disclosed that the Plaintiff was positive for the relevant disorder. As a result of the admitted negligence of the Hospital, the test results were sent to both her parents, as well as to a consultant paediatrician who was not treating the Plaintiff (but who was treating her brother). Letters enclosing the test results appear to have been sent out on 13 December 2017. No notification of her test results was actually given to the Plaintiff herself and she learned of the results from her mother. In January 2018, she learned from her mother that her father had also been sent her test results.

PROCEEDINGS

5 In December 2019 the Plaintiff brought personal injuries proceedings against the Hospital. In the Indorsement of Claim, she says that her younger sister had previously been confirmed for the genetic disorder and her father (from whom, it is said, the disorder had been inherited and from whom the Plaintiff is said to be estranged) had reacted very badly to her sister's results. That had caused distress to the Plaintiff and she was acutely conscious that her own test results should not be revealed to him and so (she says) she specifically informed her doctor that she did not want her father to be advised of her results. She says that the doctor assured her that the results would remain confidential. She was extremely shocked and upset when her mother told her that she had received her test results and that upset and distress was compounded when she learned from her mother that her father had also received the results. She was “devastated to learn that her father was aware of her test results .. and she feared an adverse reaction, similar to that which had occurred in relation to her sister.” In September 2018 when she was at a family wedding, a relative on her father's side questioned her about the diagnosis, which was embarrassing, humiliating and upsetting given that the Plaintiff had at all times intended to keep her diagnosis confidential. She was concerned about who else her father had told and “the unauthorised disclosure of her results to her father continues to prey on her mind.” The Personal Injuries Summons claims damages (including aggravated and/or exemplary damages) for negligence and breach of duty as well as for breach of constitutional rights and rights under the ECHR. Although the Indorsement of Claim asserts that the Hospital breached its obligations under the Data Protection Acts 1988 and 2003, no claim for damages under those Acts appears to be made in the Personal Injuries Summons, at least in express terms but it appears from the Reply subsequently delivered by the Plaintiff that she is asserting an entitlement to such damages. Whether or not that assertion is well-founded is not, of course, an issue in this appeal.

6 The Plaintiff delivered Updated Particulars of Injury in May 2021. In those Particulars it is said that the Plaintiff had tried to speak to her father after she became aware that he had received her test results but that he dismissed her, as did her paternal grandmother. These “ negative interactions” had added to her distress. The Particulars go on to state that the Plaintiff's relationship with her father “ which had not been good, was further damaged as a result of his attitude to her abnormal test results and his inability to show any empathy towards her, as was the relationship with her paternal grandmother. The Plaintiff was upset that her father knew her information, in circumstances where he was not willing to speak about it, did not want to know anything about it and did not provide her with support”.

7 The Updated Particulars go on to assert that the Plaintiff had failed “ one or two exams in January 2018 due to her distress that her father had been informed.” She tended to ruminate on her decision to undertake genetic testing, questioning whether it had been worth giving her father knowledge of the results “ as he now had something over her.”

8 The Updated Particulars also make reference to the fact that the Plaintiff had attended for assessment with Dr Elizabeth Cryan, Consultant Psychiatrist, in March 2020. Dr Cryan had “ diagnosed the Plaintiff with an Adjustment Disorder with a mixed picture, including symptoms of anxiety, depression and anger, as a consequence of the wrongful disclosure and her father and grandmother's reactions.” In addition to the Adjustment Disorder, it is said that Dr Cryan had also “noted that the wrongful disclosure had resulted in a further strain on the Plaintiff's relationship with her father, due to his inability to respond to her diagnosis or empathise with her.”

9 The Hospital delivered its Defence in October 2020 (prior to the delivery of the Updated Particulars of Personal Injuries just referred to). After a number of preliminary objections (including a plea that the Plaintiff's claim is statute-barred), the Defence identifies a number of matters which the Hospital does not require to be proved, including the fact that, in or around December 2017, the Hospital had negligently disclosed the Plaintiff's test results to her parents and to a third party doctor. The Defence then gives particulars of the matters of which proof is required by the Hospital. It states that “[s]ave for the admissions set out above the Defendant requires proof of all other allegations specified and matters pleaded in the Personal Injuries Summons unless otherwise specifically pleaded” (my emphasis). It then sets out a number of specific matters (“ [w]ithout prejudice to the generality of the foregoing”) of which proof was required, including the following:

“i That the Plaintiff had made it clear to the Defendant's servants or agents that she did not wish for the test results to be communicated to her father;

ii The particulars and circumstances relating to the commission of the wrong pleaded in the Indorsement of Claim.

iii That the Plaintiff suffered a personal injury as a consequence of the admitted breach for which she is entitled to be compensated in law

iv That the Plaintiff suffered any material damage as a consequence of the admitted disclosure.”

The only other part of the Defence that may be relevant for the purpose of this appeal is a plea in Part 3 (grounds upon which the Defendant is not liable for the alleged injuries suffered by the Plaintiff) to the effect that, prior to the disclosure of the test results to them, her parents had already been aware that the Plaintiff was undergoing testing (Para 3iii(ii)).

10 The Plaintiff delivered a Reply in August 2021 joining issue with the Defence.

THE APPLICATION FOR DISCOVERY

AND THE ORDER MADE BY THE HIGH COURT

11 By letter of 12 January 2021 the State Claims Agency, solicitors for the Hospital, wrote to the Plaintiff's solicitors seeking the voluntary discovery of the following categories of documents

“1. All medical records of the Plaintiff, to include counselling records, for a period of 3 years prior to the 30 November 2017 and up to the 12 January 2021.

2. Records of all communications including instant messages, text messages, (to include WhatsApp, Instagram and all apps used by the Plaintiff) emails, phone calls, letters between the Plaintiff and her father between 1 June 2017 and 1 June 2018.”

12 The only category at issue in this appeal is category 2 above. The Plaintiff agreed to make discovery of her medical records for the 3 year period prior to 30 November 2017 but declined to make discovery of any later records. That was contested in the High Court, the Judge directed discovery of the category in the terms requested and that decision has not been appealed. It is therefore unnecessary to say anything more about category 1.

13 The letter seeking voluntary discovery set out the following reasons for seeking discovery of category 2:

“The Plaintiff claims that the disclosure to her father of her genetic test result was contrary to a specific instruction given to the Plaintiff's doctor by reason of the Plaintiff being estranged from her father. She says that she was devastated to learn that her father was aware of her test result and that she feared an adverse reaction. The discovery sought herein goes to whether there was estrangement, whether the Plaintiff's father did communicate an adverse reaction to the Plaintiff and the damage or harm which was sustained to the Plaintiff by reason of the Defendant's disclosure to the...