Brennan v Western Health Board & Roscommon County Council

• Jurisdiction: Ireland
• Judge: Mrs Justice Macken
• Judgment Date: 18 May 1999
• Neutral Citation: [1999] IEHC 162
• Docket Number: No.6497p/1996
• Court: High Court
• Date: 18 May 1999

[1999] IEHC 162

THE HIGH COURT

No.6497p/1996

BRENNAN v. WESTERN HEALTH BOARD & ROSCOMMON CO. COUNCIL

BETWEEN

SUSAN BRENNAN

PLAINTIFF

AND

THE WESTERN HEALTH BOARD AND THE COUNTY COUNCIL OF THE COUNTY OF ROSCOMMON

DEFENDANTS

Citations:

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

REIDY V NATIONAL MATERNITY HOSPITAL UNREP BARR 31.7.1997 1998/10/2907

O DOMNHAILL V MERRICK 1984 IR 151

TOAL V DUIGNAN 1991 ILRM 135

Synopsis

Practice and Procedure

Practice and procedure; delay; motion to strike out on grounds of delay; personal injury to infant plaintiff; proceedings commenced in third year after plaintiff came of age; whether delay was inordinate and inexcusable; whether infant plaintiff should be fixed with delay on part of parents or guardians; whether it unjust in all the circumstances to require the defendant to defend the case.

Held : Motion granted.

Brennan v. The Western Health Board - High Court: Macken J. - 18/05/1999

While there were no notes or records of any description available of the plaintiff’s birth the question was whether it was possible that the defendant would be in a position to defend itself properly in a claim for damages for negligence by the plaintiff arising out of her breech birth delivery and in circumstances where the plaintiff who was born in 1975 did not commence proceedings until July 1996. Without those notes the defendant would be put into an impossible position in seeking to defend itself. While it was true that the plaintiff’s mother may have a good recollection of events and was a midwife and while it was just as true that the present live witnesses for the defendant might also be in a position to give oral evidence as to some or other of the events of so long ago, nevertheless what did or did not happen - and which would be recorded on the charts or records - was likely to be essential and these no longer existed. The case could not be defended properly by the defendant. The High Court so held in striking out the claim.

Mrs Justice Macken

1 This application is brought by the Defendant who seeks to strike out the claim of the Plaintiff in these proceedings on the grounds of inordinate and inexcusable delay in the commencement of the within proceedings.

2 The Plaintiff was born on the 12^th September, 1975 and was delivered at Roscommon County hospital, which was under the control of the Defendant. Her mother was attended by the County Surgeon by a Dr Casey, anaesthetist a Mrs Mary Early, midwife and certain other staff. Her mother was in labour at the time of admittance. The Plaintiff was delivered as a breech baby.

3 The Plaintiff was detained in the Defendant's hospital after her birth, in an incubator, for a period of three weeks and was then discharged. The Plaintiff's mother was discharged about one week after the birth of the Plaintiff.

4 The Plaintiff was, on the recommendation of the District Nurse, referred to a general practitioner in early 1976 and he, in turn, referred the Plaintiff for paediatric assessment by a Dr Donovan and the Defendant's hospital.

5 Essentially since early in 1976 the Plaintiff was under medical care and was at an early stage diagnosed as suffering from cerebral palsy. It is unnecessary for me to go into any of the Plaintiffs medical history, but it is alleged in the Statement of Claim that (a) the Plaintiff was the subject of a difficult breech delivery, (b) that there had been a delay in the delivery of the head and (c) that the Plaintiff had experienced "twitching" for several days following delivery. The Statement of Claim also alleges that upon examination, the Plaintiffs nervous system showed that gross and fine motor movements were retarded and that the Plaintiff had sustained brain damage due to cerebral anoxia secondary to the alleged difficult breech delivery.

6 The Plaintiff came of age in the month of September 1993, and under the ordinary rules relating to the limitation period, was entitled to commence proceedings for, as here, negligence, at any time prior to the month of September, 1996. The sequence of events, so far as the pleadings go, is as follows;

On the 22nd July, 1996 the Plenary Summons issued;

On the 13th November, 1996 an Appearance was entered;

7 On the 17th February, 1997 the Statement of Claim was delivered;

On the 26th June, 1997 a Defence was delivered;

On the 24th July, 1997 a Motion for Discovery issued;

8 On the 13th March, 1998 the Motion for Discovery was struck out and costs were awarded to the Plaintiff;

9 On the 23rd November, 1998 the Motion now under consideration issued, grounded on an Affidavit sworn on the 11th November, 1998.

10 There is, according to the Defendant, in moving this Application, another key date, which is the 10th May, 1996, the agreed date on which the Defendant was first notified of a possible claim in negligence by the Plaintiff. By letter of that date, the Plaintiffs Solicitors sought from the Defendant, the medical records in relation to the Plaintiffs delivery of her mother, and in relation to the pre and post natal care of the Plaintiff.

11 The Defendant, in support of its application to strike out the Plaintiffs claim, for inordinate and inexcusable delay, makes two cardinal points. Mr Hanna, S.C., argues that, because of the absence of key personnel, combined with the absence of key documentation, the Defendant cannot properly defend the case, in the circumstances, be required to defend the action. Mr Hanna also pointed to the fact that, at an early stage, the Plaintiffs mother had decided not to institute proceedings against the Defendant, and this decision had been deliberately on her part.

12 Mr Hanna relied on the decision of the Supreme Court in Primor Plc -v-Stokes Kennedy Crowley (1995) I.R. in which the several principles applicable to applications such as this, were enunciated. These principles include the following:

13 • - that the Court has an inherent jurisdiction to dismiss a claim in the interests of justice;

14 • - that it must be established by the party moving the application that the delay was both inordinate and inexcusable;

15 • - that the Court must, if it finds both inordinate and inexcusable delay, exercise a judgment on whether in its discretion, and on the facts, the balance of justice is in favour of or against permitting the case to proceed;

16 • - In relation to this last matter the Court should consider:

17 • - the implied constitutional principles of basic fairness of procedure;

18 • - whether delay or the special facts is such as to make it unfair to the Defendant to allow the action to proceed and to make it just to strike out the Plaintiffs action;

• - any delay on the part of the Defendant;

19 • - whether any such delay would amount to acquiescence by it of the Plaintiffs own delay;

20 • - whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendant;

21 The Defendant also relies, on the case of Reidy -v- The National Maternity Hospital unrept'd, 31st July, 1997. in which, it was said, the Court dealt with a case similar to the present case, and in which Barr. J. cited with approval the principles enunciated in Primor, supra. In that case, there was medical evidence to support the Plaintiffs case, the Plaintiff had delayed only until 1989, and there were sufficient records available, although not all records were, in fact, available. On the facts, the Plaintiffs claim was not struck out, despite the time delay.

22 Counsel on behalf of the Defendant in the present case says that theReidy case can be contrasted even more with the present case, because:

23 • - it is clear the Plaintiff's mother here attributed fault from a very early stage, but took no steps;

• - the Plaintiff's mother contemplated litigation on several occasions;

24 • - as of now, there is no evidence to suggest that any medical expert supports the case made against the Defendant and the absence of the same is in stark contrast to the Reidy case;

25 • - if the destruction of its records by the Defendant is accepted as being bona fide at the time, namely, pre 1992, it is per adventure that they had been available to all parties, had there been no inordinate delay on the part of the Plaintiff;

26 • - absent the records relating to the birth of the Plaintiff, it is not possible for the Defendant to verify any of the obstetric history of the Plaintiffs mother;

27 On the other hand, Mr Whelehan, S.C. on behalf of the Plaintiff argues that:

28 (a) the Plaintiff has a constitutional right to bring a claim against the Defendant, which right is recognised in the legislation, which grants her a right for a period of three years after she...