Ahearne v O'Sullivan and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 31 May 2023
• Neutral Citation: [2023] IECA 134
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 78/2020

Between/

Peter Ahearne

Appellant

and

Tadhg O'Sullivan, Alec Medical Limited, Pei Surgical, Depuy (Ireland), Depuy International Limited, and The Health Service Executive

Respondents

[2023] IECA 134

Edwards J.

Whelan J.

Faherty J.

Record No: 78/2020

THE COURT OF APPEAL

UNAPPROVED JUDGMENT

FOR ELECTRONIC DELIVERY

JUDGMENT of Mr. Justice Edwards delivered on the 31st day of May 2023 .

Introduction:

1 . This appeal is against the judgment of Simons J. delivered on the 6 ^th of February 2020, and his associated order perfected on the 18 ^th day of that same month, in which he dismissed the appellant's proceedings for want of prosecution, the respondents having successfully invoked the High Court's overlapping jurisdictions to do so (i) where there has been inordinate and inexcusable delay and the balance of justice favours dismissal, and (ii) where there has been found to exist a real and serious risk of an unfair trial and/or an unjust result. As we will see, the High Court in this instance was satisfied that the relevant tests, being “ the Primor test”, and “the O'Domhnaill test” (as they were each respectively labelled in Cassidy v The Provincialate [2015] IECA 74), had been met by the respondents.

2 . For consistency, the appellant in this appeal, who is the plaintiff in the proceedings, will hereinafter be referred to throughout this judgment simply as the plaintiff, and the respondents, who are all defendants in the proceedings, will similarly be referred to simply as defendants (first to sixth, as the case may be).

3 . The dismissed proceedings involved, inter alia, medical negligence/products liability claims against relevant defendants in the proceedings and were founded on events, beginning with a hip replacement operation in 1995 during which it is alleged that a defective hip prosthesis was implanted in the plaintiff resulting in a series of medical complications necessitating a number of subsequent operations and attempted revisions of the affected hip joint, and ultimately culminating in a protracted period of legal activity starting with the plaintiff issuing a personal injuries summons on the 4 ^th of February 2011 and ending with the dismissal of the proceedings by Simons J. on the 6 ^th of February 2020.

Background.

4 . On the 17 ^th of August 1995, the plaintiff attended the first named defendant, a consultant orthopaedic surgeon, at the Lourdes Regional Orthopaedic Hospital, Kilcreene in County Kilkenny for the purpose of undergoing a hip replacement. The operation was not the first procedure the plaintiff had undergone in relation to his right hip: indeed, as a result of his involvement in a road traffic accident on the 23 ^rd of December 1989, the plaintiff had developed complications in his right hip and had undergone several different procedures to treat this ranging from a manipulation under anaesthetic and traction, in the immediate aftermath of the road traffic accident, to an open reduction and internal fixation of the right hip on or about the 5 ^th of January 1990.

5 . Against this historical background, the hip replacement operation of the 17 ^th of August 1995 was performed using a hip device that was developed/manufactured/supplied by the second to fifth named defendants. As part of this procedure, the first named defendant implanted a hip prosthesis the components of which, as pleaded in the plaintiff's Personal Injuries Summons, comprised of “a Hylamer Ogee Cup, Elite Zirconia Head, Elite Plus Femoral Implant Flanged 4, and a Centraliser”.

6 . It is widely known, at least in legal circles, that that there has been extensive litigation, both here and abroad, involving a hip device developed/manufactured/supplied by the fifth named defendants and others. As was observed by Cross J. in his judgement in Flynn v DePuy International Limited & Ors [2017] IEHC 267, at paras. 1 – 2 thereof, there were approximately 1,000 personal injury cases involving defective prosthetic hip implants developed/manufactured/supplied by those defendants pending as of date of delivery of that judgment. Importantly, however, it was clarified by counsel at the appeal hearing that the impugned hip device at issue in the present proceedings is a device which is described as “the Hylamer hip” whereas the impugned implant at issue in those actions was described as “the ASR hip”, a separate and distinct hip device.

7 . The plaintiff's initial hip replacement operation of the 17 ^th of August 1995 was ultimately not successful, and the plaintiff underwent a series of subsequent procedures as described below.

8 . On or about the 16 ^th of May 2001, the plaintiff was scheduled to undergo a right revision hip replacement. This revision surgery had to be carried out in two stages. The first stage, involving exploration of the affected hip joint, was conducted by the first named defendant who noted the presence of yellow coloured fluid around the hip joint and that the components of the prosthesis implanted on the 17 ^th of August 1995 were loose. The second stage, took place on the 30 ^th of May 2001 and involved the plaintiff undergoing an allograft reconstruction of the acetabulum after developing loosening of the hip prosthesis. This procedure was again performed by the first named defendant and it is pleaded that it involved “using a product/device manufactured/supplied by the second, third, fourth and fifth defendants”.

9 . The plaintiff underwent a second surgical revision of his right hip on or about the 6 ^th of November 2002. This procedure, again carried out by the first named defendant, involved the revising of the existing acetabular allograft with fresh frozen allograft and also revision of the acetabular cup. A bacterial infection was detected as being present at the time (specifically identified in the personal injuries summons as “ a growth of Staphylococcus Epidermis”) and the plaintiff was prescribed antibiotics as treatment. It is again pleaded that the procedure involved “using a product/device manufactured/supplied by the second, third, fourth and fifth defendants”.

10 . On or about the 12 ^th of May 2004, the plaintiff underwent yet another revision of his acetabulum. Performed by the first named defendant, this procedure is pleaded as having involved “using a product/device manufactured/supplied by the second, third, fourth and fifth defendants”. In the course of the operation it was observed that the plaintiff was continuing to discharge pus from his hip joint and Staphylococcus Epidermis infection was again isolated.

11 . On or about the 26 ^th of April 2006, the plaintiff underwent a further second stage revision procedure which was once again carried out by the first named defendant. This procedure involved the implantation of a custom-made acetabular prosthesis, being a hip device manufactured/supplied by the second, third, fourth and fifth named defendants.

12 . It is claimed that following this series of operations, the plaintiff continued to suffer from “significant and ongoing infection requiring the treatment of intravenous antibiotics”.

13 . The Personal Injuries Summons pleads negligence and breach of duty (including breach of statutory duty) on the part of the second to fifth named defendants in and about the manufacture and supply of the hip product /device implanted in the plaintiff. Detailed particulars of the alleged negligence and breach of duty are pleaded at sub-paragraphs 25(i) to 25(xi) thereof. The breaches of statutory duty alleged are those owed to a consumer under various provisions of the Sale of Goods and Supply of Services Act 1990. It is separately pleaded that the defendants are liable to the plaintiff in damages under the Liability for Defective Products Act 1991 and/or Council Directive 85/374/EEC (on the approximation of laws, regulations, and administrative provisions of the member states of the European Communities concerning liability for defective products). Further, the Personal Injuries Summons pleads professional negligence and breach of duty, including statutory duty, on the part of the first named defendant, his servants or agents. It is pleaded that the sixth defendant is liable for the actions and omissions of the first defendant. Detailed particulars of the alleged professional negligence and breach of duty are pleaded at sub-paragraphs 27(i) to 25(vi) thereof. There are also then pleas of negligent misstatement and/or misrepresentation, of deceit, and of breach of fiduciary duty on the part of the first named defendant, his servant or agents. Finally, the Personal Injuries Summons alleges breaches of various of the plaintiff's constitutional rights / rights under the European Convention on Human Rights by the defendants, their servants or agents, including his right to bodily integrity, his right to be free from cruel, inhuman and degrading treatment, his right to privacy and his right of access to the courts.

14 . The plaintiff alleges that the defendants were aware of the defects in the impugned device at the time that the various operations to revise his hip were carried out and that the particulars of these defects were concealed from him. The plaintiff alleged that this is evident from the contents of a letter dated the 19 ^th of September 2001 which was sent by the second and third named defendants to the first named defendant.

History of the Dismissed Proceedings:

15 . It may be helpful at this point to set out what appears to be an uncontroversial chronology of events culminating in the dismissal of the proceedings herein by Simons J.:

7 th of May 1963	Plaintiff's date of birth
17 th of August 1995	Plaintiff underwent an initial hip replacement.
12 th November 2008	Plaintiff requested copies of his medical records and, upon review, discovered a letter sent by the third defendant to the first defendant, dated 19 th of September 2001, which he...