Barry v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 December 2015
• Neutral Citation: [2015] IEHC 791
• Docket Number: [2011 No. 9271 P.]
• Court: High Court
• Date: 16 December 2015

[2015] IEHC 791

THE HIGH COURT

Barr J.

[2011 No. 9271 P.]

BETWEEN/

GERALDINE BARRY

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND

MERCY UNIVERSITY HOSPITAL LIMITED

DEFENDANTS

Tort Damages & Restitution – Civil Liability Act 1961 – Medical Negligence – Death of partner Special & General damages – Loss of employment and mental health – Inheritance tax – non deductible asset

Facts: The plaintiff, being the dependant of the deceased, sought an award for damages under part IV of the Civil Liability Act 1961 against the defendants, who admitted breach of duty in taking care of the deceased post-surgery. The plaintiff claimed that she suffered psychiatric illness and injury after the death of the deceased and was thus liable to be compensated.

Mr. Justice Barr granted an award of damages for personal and fatal injury claim to the plaintiff. The Court assessed the general and special damages to the plaintiff after taking into account her present condition, loss of earnings, loss of the deceased's services and past special damages. The Court also held that since the plaintiff was not married to the deceased but given the strong bond between the two, the plaintiff was also liable to recover inheritance tax from the deceased. The Court held that the house that the plaintiff inherited would not be treated as an accrued benefit as she was obliged to sell the house and move in another property. The Court, however, allowed deduction of a certain amount from the asset of the plaintiff due to the fact that the plaintiff came to inherit the properties before time, and hence those were ‘accrued benefit’.

JUDGMENT of Mr. Justice Barr delivered on the 16th day of December, 2015

Introduction

1 The plaintiff in this case is the former partner of one Christopher Sayer, who died on 19th April, 2010, as a result of the breach of duty by Mercy University Hospital (‘MUH’) in the post-operative care provided to him on 16th and 17th March, 2010. Mr Sayer and the plaintiff had been in a relationship since 2005 and had been living together since June 2006. The plaintiff brings this action, as a dependent of the deceased, for damages pursuant to the provisions of Part IV of the Civil Liability Act 1961, as amended. In addition, the plaintiff claims damages for personal injuries in the form of psychiatric symptoms caused by the circumstances of Mr Sayer's death.

2 MUH admitted that there was a breach of duty on its part which caused Mr Sayer's death. The case therefore proceeded as an assessment of damages against MUH.

Background

3 The plaintiff, Geraldine Barry, was born on 31st December, 1970. She grew up in West Cork. She attended Dublin City University and graduated with a 2:1 degree in Applied Languages (French and German). She subsequently completed a Higher Diploma in Education at University College Cork in 1999, and worked as a teacher from 1999 to 2002. However, she found teaching stressful and instead took up work as a dental receptionist and administrator in O'Brien's Dental Surgery in Skibbereen. She remained working there from 7th October, 2003, to 28th April, 2014. She felt that she performed well at her job, at least up until 2009 when Mr Sayer's illness began to affect her work. Her responsibilities included practice administration, and doing the accounts and wages. She described the work environment as ‘ robust’, but said that she was confident enough in her role to manage it well.

4 The plaintiff experienced some episodes of depression and anxiety during her twenties, for which she was prescribed antidepressant medication. She explained that these episodes were usually a reaction to a particular stressor – a new job, or some other such event. When life was going well for her, depression was not an issue. The plaintiff was on medication in 1995 for around twelve months; again in 1998 when she was completing her Higher Diploma; and again in the early 2000s, for around eight months. She saw a consultant psychiatrist, Dr. Clare O'Connell, in 2002, who encouraged the plaintiff to socialise more and to engage with the community. The plaintiff said that she took this advice.

5 In November 2005, the plaintiff was introduced to Christopher Sayer in a restaurant in Skibbereen. The plaintiff explained that, at this point, she was thirty-four, while Mr Sayer was sixty-five; she said that Mr Sayer was more concerned about this age gap than she was. She said that she enjoyed his company and that they had similar interests; she found him witty, funny and attractive. Their relationship developed quite quickly after this and the plaintiff moved into Mr Sayer's house at Church Cross, Skibbereen, on 18th June 2006.

6 Mr Sayer lived on the proceeds of his property investments in the United Kingdom and he had a small British pension. He was also very interested in music and earned a living as a musician. The plaintiff stated that her partner regularly played in local pubs and clubs. The plaintiff stated that this work was seasonal, and varied according to demand. She said that during the summer, he would have been doing gigs almost every night, but that during the winter this was reduced to one or two nights a week, mainly at weekends.

7 The plaintiff said that she and Mr Sayer were very happy together. She said that she envisaged staying with Mr Sayer for the rest of her life. She conceded that marriage was not discussed until after her partner was diagnosed with cancer. The plaintiff stated that after his cancer diagnosis on 22nd February, 2010, Mr Sayer had said to her that they would get married. The plaintiff stated that there was a very definite intent that they would be married.

8 As regards their living arrangements during the course of their relationship, the plaintiff stated that she was at work from 09.00 to 17.00 hrs, while Mr Sayer worked in the evenings. He was therefore at home during the day. The plaintiff stated that the housework, which included hovering, cleaning and shopping, was done by Mr Sayer. He also did the gardening and any general maintenance. The plaintiff stated that her partner paid all the utility bills. During this period, she stated that her earnings were devoted to securing a mortgage. She secured approval for a mortgage and purchased a house in 2008 in Drimoleague. She rented this house to two of her sisters for several years. This is the house in which she now lives.

9 The plaintiff stated that, as regards his general health, Mr Sayer was a fit man. He was a member of a gym; he played squash and tennis regularly, and he was part of a competitive tennis league in Schull.

10 In October 2009 Mr Sayer fell ill. It was the October bank holiday weekend and he was scheduled to play several gigs, including some in the Kinsale Jazz Festival. He was complaining of bowel cramping and attended his GP who diagnosed irritable bowel syndrome and prescribed Colofac. However, his symptoms deteriorated, and he was unable to eat. He was experiencing a great deal of abdominal discomfort and had a severe attack of hiccups that lasted for a few days. The plaintiff said she recalled having to ring to cancel some of Mr Sayer's musical gigs, which had never happened previously.

11 The plaintiff took Mr Sayer to the out of hours GP service on the bank holiday Monday. The doctor who saw Mr Sayer confirmed that he did not have cancer of the oesophagus, which had been a concern for the deceased on account of his family medical history. Mr Sayer returned home, but his condition worsened. The next day, the plaintiff took him to the accident and emergency department in Bantry General Hospital. Here they met Dr Olivier de Buyl, a neurologist, who is a general physician in Bantry General Hospital. In the accident and emergency department, Mr Sayer became somewhat confused and disorientated. He was unable to answer basic questions, such as his name and date of birth. A CT scan of his thorax, abdomen and pelvis was performed, and he underwent a gastroscopy examination. These tests came back clear. No colonoscopy was performed at this stage.

12 A CT scan of Mr Sayer's brain showed a thrombosed aneurysm in his middle cerebral artery. The main focus of the care provided to Mr Sayer at this point, therefore, was on addressing the aneurysm. On 18th December, 2009, a procedure known as ‘coiling the aneurysm’ was performed. This procedure successfully treated the aneurysm.

13 Following this procedure, Mr Sayer returned home, where his condition deteriorated. He continued to complain of abdominal symptoms. He spent a great deal of time in bed. He was uncomfortable when he walked and used a hot water bottle constantly, which resulted in mottled skin on his stomach. He was unable to eat solids and was restricted to a diet of soups, Complan and boiled eggs. The plaintiff said that her partner started to look very gaunt and drained at this time.

14 In mid-January, Mr Sayer started passing blood. At this point, he went to his GP, Dr Mary O'Neill. She referred him to Bantry General Hospital for a colonoscopy, which was performed on 22nd February 2010; an endoscopy was also performed. Dr de Buyl informed Mr Sayer that there was a tumour in his bowel, which was likely to be cancerous.

15 Mr Sayer was therefore sent to Mr O'Riordan, who was a colorectal surgeon in MUH, Cork. Mr Sayer's first appointment at MUH was on 26th February, 2010, with Mr Zeeshan, who was one of Mr O'Riordan's registrars. The plaintiff stated that this doctor explained the colonoscopy and the attendant risks.

16 There had, at this point, been a four-month delay in the diagnosis of Mr Sayer's colon cancer, and the plaintiff stated that this caused him unnecessary suffering. The plaintiff recounted that the colonoscopy proved to be traumatic for her partner, as the sedation did not work. The plaintiff complained that the communication skills of various doctors, nurses,...