Armstrong v Moffatt (t/a Ballina Medical Centre) & Irwin

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 28 March 2013
• Neutral Citation: [2013] IEHC 148
• Court: High Court
• Docket Number: [2011 No. 4081 P]
• Date: 28 March 2013

Armstrong v Moffatt (t/a Ballina Medical Centre) & Irwin

BETWEEN/

AGNES ARMSTRONG

PLAINTIFF

SEAN MOFFATT AND THOMAS MOFFATT T/A BALLINA MEDICAL CENTRE AND MAURA IRWIN

DEFENDANTS

[2013] IEHC 148

[No. 4081 P/2011]

THE HIGH COURT

Practice and procedure - Personal Injuries - Notice for particulars - Necessity - Prematurity - S. 11 Civil Liability and Courts Act 2004 - Order 19 rule 7, Rules of the Superior Courts

Facts: The plaintiff had been required to respond to a notice for particulars relating to personal injury proceedings brought pursuant to s. 11 Civil Liability and Courts Act 2004. Particulars had been raised as to legal expenses insurance, the time of the accident, whether an ambulance had been called, the identity of witnesses to the incident, a request for a narrative account of the accident, particulars of negligence and breach of duty, breach of statutory duty, particulars of treatment, prognosis, Social Welfare Act details and particulars of special damages. The Court considered the relationship between current practice and the scope and object of Order 19 rule 7, Rules of the Superior Courts.

Held by Hogan J. that the vast majority of particulars raised would be disallowed for reason of lack of necessity or their prematurity. The actions here were representative of current practice. The Court questioned whether true sight had been lost of the purpose of seeking further particulars.

CIVIL LIABILITY & COURTS ACT 2004 S10

CIVIL LIABILITY & COURTS ACT 2004 S13(1)

CIVIL LIABILITY & COURTS ACT 2004 S14

CIVIL LIABILITY & COURTS ACT 2004 S11

CIVIL LIABILITY & COURTS ACT 2004 S11(1)

CIVIL LIABILITY & COURTS ACT 2004 S11(1)(C)

RSC O.19 r7

COONEY v BROWNE & ORS 1985 IR 185 1985 ILRM 673

MAHON v CELBRIDGE SPINNING CO LTD 1967 IR 1

MCGEE (A MINOR) v O'REILLY & NORTH EASTERN HEALTH BOARD 1996 2 IR 229 1996/13/4130

RSC O.19 r7(1)

COYLE v HANNAN 1974 NI 160

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012

DOYLE v INDEPENDENT NEWSPAPERS (IRL) LTD & FANNING 2001 4 IR 594 2001/6/1462

RSC O.63A

OCCUPIERS LIABILITY ACT 1995

1 JUDGMENT of Mr. Justice Hogan delivered on the 28th March, 2013

2 1. At issue in the present application is the extent to which the plaintiff is required to respond to a notice for particulars served by the defendants on 23 ^rd November, 2012. By this application the Court is also called upon to re-examine the extent to which the traditional understanding regarding the extent to provide particulars in personal injury cases has been affected by the enactment of the Civil Liability and Courts Act 2004 ("the 2004 Act").

3 2. In the present case the plaintiff sues three medical practitioners in respect of injuries which were said to have occurred while the plaintiff was being treated at the Ballina Medical Centre on 15 ^th May, 2009. The plaintiff was aged 67 at the time of the alleged incident. She contends that she was endeavouring to transfer from the lying to the sitting position on an examination couch when, following that examination, she was caused to slip and fall from that couch to the floor. Ms. Armstrong contends that she suffered a fracture of her right hip and that she was shocked and greatly shaken as a result. She maintains that she was taken by ambulance to Mayo General Hospital where she underwent a right hip hemi-arthroplasty and was detained in hospital for one week and was obliged to recuperate in another home hospital for a further four weeks. She further contends that these injuries brought about a right foot drop which causes her considerable problems and she sets out further adverse consequences which are said to have occurred as a direct and foreseeable of this particular accident.

4 3. It is important to state that this is not a claim for medical negligence. It is rather a claim for personal injury by reason of an accident which - it is said - occurred in the examination room of the medical centre by reason of the negligence and breach of duty on the part of the defendants. It is also important to note that the defendants have not yet filed a defence following pending the resolution of the issue of the extent to which the plaintiff is required to furnish particulars.

The changes brought about by the 2004 Act with regard to pleading in personal injury cases

5 4. Before considering the notice for particulars itself, it should be recalled that the 2004 Act introduced very significant changes to the system of pleading in personal injury cases. Section 10 of the 2004 Act recites that the personal injury summons must contain the following information:-

6 (a) the plaintiff's name, address and occupation;

7 (b) the plaintiff's public service number;

8 (c) the defendant's name, address and occupation;

9 (d) the injuries alleged;

10 (e) the particulars of special damage;

11 (f) full particulars of negligence; and

12 (g) full particulars of each incidence of negligence by the defendant.

13 Section 13(1) of the 2004 Act further provides:-

"All pleadings in a personal injuries action shall -"

(a) in the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of which the action consists and of each allegation, assertion or plea comprising that claim -

14 ..."

15 5. A further departure from the pre-existing practice is that s. 14 now requires that the plaintiff in a personal injuries action must verify on affidavit assertions or allegations contained in any pleading and further information supplied to the defendant in the course of that litigation.

16 6. Section 11 also allows the defendant in a personal injuries action to request the following further information, namely:-

17 a "(a) particulars of any personal injuries action brought by the plaintiff in which the court makes an award or damages,

18 (b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,

19 (c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and

20 (d) the name of any persons from whom the plaintiff received such medical treatment..."

21 7. On 23 ^rd November, 2011, the solicitors for the first and second named defendants issued a notice for particulars which sought a range of different information arising out of this incident and which particulars were said to arrive from the plaintiff's personal injury summons and indorsement of claim dated 9 ^th May 2011.. The plaintiff's solicitors immediately wrote back on 28 ^th November, 2011, to say:-

"In the light of recent experience and court practice we will not be responding to a notice for particulars, save and except in so far as the notice requires further information in accordance with s. 11 of the Civil Liability and Courts Act 2004. This is a practice we have had to adopt in the light of some experience of colleagues who persist in sending detailed notice of particulars, in the old practice format notwithstanding the enactment of the Civil Liability and Courts Act 2004. Accordingly, you may wish to consider the notice for particulars you sent us and insofar as you require answers to any queries provided for in s. 11 of the said Act we will be happy to consider same."

22 8. I should break off my narrative at this juncture by noting that two of the specific requests for particulars do in fact come within the scope of s. 11(1) of the 2004 Act. Paragraph 8 of the notice for particulars sought to ascertain whether the plaintiff was involved in any accident or suffered any personal injury or personal disability prior to the May, 2009 incident and sought details of same. Paragraph 9 was in similar terms, save that these queries related to any accident or illness, injury or disability which occurred after May, 2009 and particulars of any such accident or illness were also sought.

23 9. In my view, these particular requests plainly come within the scope of s. 11(1 )(c) namely:-

"Particulars of any injury sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates."

24 It follows, therefore, that as these specific requests for particulars fall within the scope of s. 11, the plaintiff is obliged to answer them insofar as this has not already been done.

25 10. Returning now to the narrative, the solicitors for the first and second named defendants responded on 14 ^th December 2011, saying:-

"In respect of your reference to s. 11 of the Civil Liability and Courts Act 2004, we would like to point out that [this section] does not confine us in relation to the particulars we may raise and by way of opinion that the notice for particulars we have raised is perfectly reasonable and arises of the matters pleaded in the personal injuries summons. If you decide not to reply to some or all of same, that is a matter for your good selves and it is a matter for the court to determine a motion by us as to whether or not your failure to do so is in fact reasonable in all the circumstances. Please furnish us now with your replies to particulars without any further delay."

26 11. Matters reached an impasse at that point and the defendants have now sought an order pursuant to Ord. 19, r.7 directing the plaintiff to reply to this notice for particulars.

General principles regarding the delivery of particulars and the 2004 Act

27 12. The general principles regarding the delivery of particulars are, of course, unaltered by the 2004 Act. Yet for the reasons I will presently set out, the manner in which these principles should be applied by the courts must perforce be significantly changed as a result of the enactment of this Act.

28 13. The...