Ahmed (plaintiff) v Health Service Executive

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 29 August 2007
• Neutral Citation: [2007] IEHC 312
• Court: High Court
• Date: 29 August 2007

[2007] IEHC 312

THE HIGH COURT

No. 3940 P/2005

AHMED v HEALTH SERVICE EXECUTIVE

BETWEEN/

IBRAHIM AHMED

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

AHMED v HEALTH SERVICE EXECUTIVE UNREP LAFFOY 6.7.2006 2006 IEHC 245

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

FARRELL IRISH LAW OF SPECIFIC PERFORMANCE 1994 PARA 1.20

LIFT MANUFACTURERS LTD v IRISH LIFE ASSURANCE CO LTD & JOHN SISK & SON LTD 1979 ILRM 277

CH GILES & CO LTD v MORRIS & ORS 1972 1 AER 960

POSNER v SCOTT-LEWIS 1986 3 AER 513

HILL v CA PARSONS & CO LTD 1971 3 AER 1345

LUMLEY v WAGNER 1852 5 DE G & SM 485

WHITWOOD CHEMICAL CO v HARDMAN 1891 2 CH 416

CARROLL v BUS ATHA CLIATH (DUBLIN BUS) 2005 4 IR 184 2005 ELR 192 2004 6 1392

CONWAY v IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305 1991 ILRM 497

Abstract:

Ahmed (plaintiff) v Health Service Executive (defendant)

Employment law - Medical profession - Consultants’ common contract - Contract for personal services - Specific performance - Damages - Compensatory damages - General damages - Aggravated and exemplary damages

The Court held that by operation of the Protection of Employees (Fixed-Term Work) Act 2003 the plaintiff had been employed by the defendant as a consultant surgeon on a contract of indefinite duration on the terms of the Consultants’ Common Contract. This judgment was concerned with the remedies which the plaintiff was entitled to for the defendant’s breach.

Held by Laffoy J. in awarding the plaintiff €300,000 damages for breach of contract that the decree of specific performance was an equitable remedy. As a matter of practicality, an order compelling the making of an appointment could not be properly made and enforced.

Reporter: R.W.

1 Judgment of Miss Justice Laffoy delivered on 29th August, 2007.

Liability

2 The issue of the liability of the defendant to the plaintiff was dealt with in my judgment in this matter delivered on 6th July, 2006 ( [2006] IEHC 245). I summarised my conclusions on liability as follows:

"By operation of the [Protection of Employees (Fixed-Term Work) Act, 2003] the plaintiff has been employed by the defendant as a consultant surgeon on a contract of indefinite duration since 30th June, 2004 on the terms of the Consultants' Common Contract, including Clause 8.1 which empowers the defendant to transfer the plaintiff from his original work location, Louth County Hospital, without his consent if major changes have taken place in the character of the work being carried out in Louth County Hospital and provided an offer of an appropriate alternative appointment is made to him in another hospital. By virtue of the reorganisation of surgical services in Our Lady of Lourdes Hospital and Louth County Hospital there has been a major change in the character of the work being carried out in Louth County Hospital. The defendant has not allowed the plaintiff to engage in either public or private practice at Louth County Hospital since he returned from leave in January, 2005 and has failed to make an offer of an appropriate alternative appointment to him. The defendant has been in breach of the plaintiff's contract of employment since January, 2005."

3 At the end of my judgment I urged the parties to endeavour to achieve an agreed solution to the outstanding issues because I was of the view that, because of the complexity of infrastructural, organisational and practical considerations in the provision of surgical services, such a solution was more likely to be in the interest of all interested parties than a remedy provided by the court. Unfortunately, that has not been achieved. The matter was re-listed for hearing and heard over four days commencing on 10th July, 2007 and concluding on 18th July, 2007.

Issues which remain to be determined

4 The issues which remain to be determined are the following:

5 (a) Whether the defendant's breach of its contract with the plaintiff has continued since July, 2006 and still continues, as the plaintiff contends, or whether it has been remedied, as the defendant contends and, if so, when?

6 (b) If the defendant's breach is continuing, whether the plaintiff is entitled to an order directing the defendant to make an offer of an alternative appropriate appointment to the plaintiff?

7 (c) The quantification of the damages to which the plaintiff is entitled for the defendant's breach.

Progress since July, 2006

8 The historical position as of July, 2006 was that in a letter dated 1st December, 2004 from its solicitors, the defendant acknowledged that the plaintiff was entitled to be employed by the defendant as a consultant surgeon on an ongoing basis, but not necessarily at Louth County Hospital where he had served on a series of fixed-term contracts from August, 2000. Subsequently, the defendant made three successive offers of appointments to the plaintiff, which I considered in my judgment. I concluded that none of them met the requirement of an offer of an appropriate alternative employment within the meaning of clause 8.1 of the Consultants' Common Contract. I found that to constitute an appropriate alternative appointment, an appointment would have to accommodate the plaintiff's entitlement to engage in private practice.

9 The position as of July, 2006 was that the plaintiff had continued to be paid his basic salary under the Consultants' Common Contract since January, 2005, but he had not fulfilled the duties required of him under his contract since January, 2005. That situation prevailed until February, 2007.

10 Following the judgment on liability, on 12th July, 2006 the defendant's solicitors wrote to the plaintiff's solicitors offering the plaintiff a permanent surgical post at Our Lady's Hospital, Navan (Navan Hospital), pointing out that the position was not a post approved by Comhairle na nOspideal. It was stated that the plaintiff would have access to facilities for private practice identical to those enjoyed by the two other permanent consultants in Navan Hospital and would be employed in accordance with the terms of the Consultants' Common Contract. It was stated that the permanent position was available with immediate effect. The plaintiff had two major concerns in relation to the offer. First, the fact that it was not a "Comhairle approved" post meant that it would not be recognised by VHI, a topic which was an issue in the earlier round of these proceedings. The second was the potential impact of changes which had taken place and which were likely to take place in the future in relation to the provision of surgical services at Navan Hospital. The position of the defendant was that the process to have the post approved was in hand and application was being prepared for submission to the appropriate organ, the National Hospitals Office, a section of the defendant in which the functions formerly carried out by Comhairle na nOspideal now reside. As regards VHI recognition, that was a matter for the VHI, although by mid-September, 2006 the defendant was in a position to inform the plaintiff that the position of consultants employed on contracts of indefinite duration by virtue of the Act of 2003 was to be considered by the board of VHI. In relation to the changes that might occur at Navan Hospital, the defendant's position was that, while no guarantees could be given, the defendant was confident that any changes that might be made in respect of delivery of surgical services in Navan Hospital would be to the advantage of the plaintiff in the event that he should take up the position.

11 The defendant's offer to the plaintiff of an appointment at Navan Hospital remained open throughout 2006. The position adopted by the plaintiff was that he was entitled to be satisfied that the offer constituted an offer of an "appropriate alternative appointment" and he was not prepared to accept the offer until the VHI issue had been resolved. Through September to December, 2006 there was intensive correspondence between the plaintiff's solicitors and the defendant's solicitors as to what the offer would entail in practical terms. The defendant's solicitors, in their letter of 9th October, 2006, reiterated that a position at Navan Hospital was available immediately. It would involve the plaintiff taking on the full "on-call" consultants' rota. From commencement, facilities would be available for elective surgery, endoscopies, out-patients and other sessions. It was the defendant's intention that there would be a degree of equality between the plaintiff and the other two consultant surgeons at Navan in relation to the provision of supporting services. It was acknowledged, however, that the recent review that had been carried out of surgical services in the North East would have significant implications for surgical services across the region. The immediate impact on Navan Hospital was that complex cases would not be dealt with in Navan Hospital, but would be transferred to Our Lady of Lourdes Hospital (Drogheda Hospital). It was pointed out that the change would also impact on the other consultant surgeons at Navan Hospital. Having regard to the nature of the relief to which the plaintiff claims he is entitled, I think it is instructive to note how the defendant envisaged matters progressing, as evidenced by the following passage from the letter:

"It is not possible at this time to set up the precise sessions which Mr. Ahmed will take up in Navan and Drogheda. This will be discussed with Mr. Ahmed as soon as he indicates when he will commence. There will be a commitment to carry out both elective and on-call activity at Navan. Thereafter, Mr. Ahmed will have access to regional hospital facilities to carry out the more complex cases as indicated above. This is a matter of ongoing negotiation between not only management and the...