Bridget Devlin and Terence Devlin v The National Maternity Hospital

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.
Judgment Date14 November 2007
Neutral Citation[2007] IESC 50
Docket Number[S.C Nos. 346 and 352 of 2004]
Date14 November 2007

[2007] IESC 50

THE SUPREME COURT

Murray C.J.

Denham J.

Finnegan J.

[S.C. No: 346 of 2004]
[S.C. No: 352 of 2004]
Devlin v National Maternity Hospital
Between/
Bridget Devlin and Terence Devlin
Plaintiffs/Appellants

And

The National Maternity Hospital
Defendant/Respondent

KELLY v HENNESSY 1995 3 IR 253

FLETCHER v COMMISSIONER OF PUBLIC WORKS 2003 2 ILRM 94

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)

O'DONOVAN v SOUTHERN HEALTH BOARD 2001 3 IR 385 2001 18 4927

HAY v O'GRADY 1992 1 IR 210

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)(b)

BYRNE v GREAT SOUTHERN & WESTERN RAILWAY CO OF IRELAND UNREP COURT OF APPEAL FEB 1884

BELL & ANOR v GREAT NORTHERN RAILWAY CO OF IRELAND 1890 26 LR IR 428

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 CHAPTER 17

MULLALLY v BUS EIREANN 1992 ILRM 722

ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE 1992 1 AC 310

PRACTICE & PROCEDURE

Limitation of actions

Personal injury - Date of knowledge - Proceedings not issued within three year limitation period - Whether claim statute barred - No consent given to post-mortem examination - Plaintiffs aware post-mortem carried out by defendant - Whether justification in not commencing proceedings within statutory period - Wrongful removal and retention of organs following post-mortem examination without consent - Philp v Ryan [2004] IEHC 121 (Unrep, Peart J, 11/3/2004) not followed; O'Donovan v Southern Health Board [2001] 3 IR 385 applied - Statute of Limitations (Amendment) Act 1991 (No 18 ), s (2)(2)(b) - Plaintiffs' appeal dismissed (346 & 352/2004 - SC - 14/11/2007) [2007] IESC 50

Devlin v National Maternity Hospital

TORT

Negligence

Nervous shock - Conditions to be satisfied by plaintiff seeking to recover damages for negligent infliction of nervous shock - Post-mortem examination carried out without consent - Organs removed and retained - Plaintiff becoming ill on hearing - Plaintiff developing post-traumatic stress disorder - Whether nervous shock sustained by reason of actual or apprehended physical injury to plaintiff - Whether evidence that plaintiff suffered physical injury - Byrne v Great Southern and Western Railway Company of Ireland (1884) 26 L.R. Ir. 428, Bell v Great Northern Railway Company of Ireland (1895) 26 LR Ir 428, Mullally v Bus Éireann [1992] ILRM 722, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, Kelly v Hennessy [1995] 3 IR 253 and Fletcher v Commissioners of Public Works [2003] 1 IR 465 considered - Plaintiffs' appeal dismissed (346 & 352/2004 - SC - 14/11/2007) [2007] IESC 50

Devlin v National Maternity Hospital

Denham J.
1

This case arises in the tragic circumstances of the death of a child. The issues relate to a post-mortem, the retention of organs, and nervous shock.

2

This is an appeal from the dismissal by the High Court of the plaintiffs' claim for damages arising from the negligence, breach of duty, including breach of statutory duty, and/or breach of contract, on the part of the National Maternity Hospital, its servants or agents (hereinafter referred to as 'the hospital'), by reason of which it was claimed that the plaintiffs sustained serious personal injuries, loss, damage, and/or expense.

3

Counsel on behalf of the hospital applied, on the sixth day of the hearing of the case, for a non-suit, indicating that if it were unsuccessful he would go into evidence. The learned trial judge permitted the application, and having heard the submissions, acceded to the application. Judgment was given on the 1st July, 2004, when both actions were dismissed.

4

An appeal was filed on behalf of the plaintiffs. The Notice of Appeal sets out five grounds of appeal, being that the learned High Court judge:-

5

(i) Erred in law in his application of the principles set out inKelly v. Hennessy [1995] 3 I.R. 253, as recited in Fletcher v. The Commissioner of Public Works, [2003] 2 I.L.R.M. 94 in holding that in order to recover compensation the plaintiffs had to suffer a physical or apprehension of a physical injury. Further and/or alternatively he erred in law in applying the principle of Kelly v. Hennessy in this case.

6

(ii) Erred in law in holding that in order to recover damages for nervous shock and/or a psychiatric injury the plaintiffs had to have suffered and sustained a physical or apprehension of a physical injury.

7

(iii) Erred in law and in fact, in light of the plaintiffs' then state of knowledge, in finding that the plaintiffs' claim against the hospital for the unauthorised carrying out of a port-mortem and the complaints and injuries arising therefrom was statute barred.

8

(iv) Erred in fact and in law in not distinguishing between having knowledge a post-mortem had taken place and not knowing the infant's organs had been removed and retained.

9

(v) Erred in law and in fact in acceding to the hospital's application for a direction.

10

5. In addition, the hospital has filed a notice to vary the judgment and order of the High Court. The three grounds in the notice to vary are as follows:-

11

(i) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in not imputing to the plaintiffs and each of them by virtue of the operation of the provisions of s. 2 (2) of the Statute of Limitations (Amendment) Act,1991 the knowledge that the plaintiffs expert, Dr. Barson, Consultant Pathologist, had, that organs and tissue had been retained when the expert furnished his report, dated the 23rd day of August, 1991 (and supporting documentation) to the plaintiffs solicitors which clearly demonstrated and/or indicated that organs and tissue had been removed and retained from the plaintiffs' stillborn infant, Laura.

12

(ii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in finding that for the purposes of the operation of the Statute of Limitations Acts,1957 - 1991 that time only commenced to run against the plaintiffs' on receipt of the letter from the hospital dated 24th March, 2000.

13

(iii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in failing to hold that the plaintiffs did not establish any personal injury loss and damage arising out of the alleged negligence and breach of duty on the part of the hospital where the first named plaintiff gave evidence to the effect that even if consent had been obtained for the post-mortem the letter dated 24th March, 2000, could have caused same and/or similar personal injury, loss and damage as was allegedly caused by the alleged lack of consent.

14

Although it is the last ground of appeal, I will consider it first. It was submitted that the High Court erred in acceding to the hospital's application for a direction.

15

7. On the application for a direction the High Court applied a test, that is whether, treating the plaintiffs' case at its highest, the Court would be entitled to arrive at the conclusion that the hospital had a case to meet. The High Court held that it must assume the truth of all factual evidence given on behalf of the plaintiffs, referring to O'Donovan v. Southern Health Board [2001] 3 IR 385. This it then did.

16

8. The learned High Court judge assumed the following matters:

"… for the purpose of this application I must assume, as I do, firstly that the plaintiffs did not give their consent to a post-mortem examination being carried out on their deceased daughter; secondly, that the plaintiffs did not know that in the course of that post-mortem examination organs would be removed from the deceased and retained by the defendants; thirdly, that the plaintiffs did not actually learn of the fact that the organs had been retained until they received a letter on that behalf dated 24th March, 2000, from Dr. Declan Keane, then Master of the defendant's hospital; and fourthly, that on learning that the organs of her deceased daughter had been retained by the defendants the first named plaintiff, Bridget Devlin, suffered shock and post-traumatic stress."

17

9. I am satisfied that on the application for a direction the High Court applied the correct principles of law. The High Court assumed the truth of the evidence given on behalf of the plaintiffs, and determined the application on that basis. This is the correct approach, and there was no error made in this regard by the learned High Court judge. Consequently, I would dismiss the appeal insofar as it is grounded on the basis of a claim of error of the High Court in acceding to the hospital's application for a direction.

18

In considering this appeal, I do so on the basis that it is an appeal by Mrs Bridget Devlin, and not by Mr Terence Devlin. In the High Court counsel for the hospital submitted that, irrespective of how the Court determined the issue of liability between the parties, no cause of action was established on the part of Mr Terence Devlin, in that there was no evidence that he had suffered an injury or damage as a result of the matters in issue. The High Court held:-

"Not only was there no medical evidence to suggest that Mr Devlin suffered an injury as a result of the matters complained of but he himself in the course of his evidence did not say one word which suggested that he personally had suffered an injury. He had a lot to say about how his wife had suffered but nothing about himself. In this regard, I reject the suggestion by Mr McCartan Senior Counsel on his behalf that I should infer from the evidence which I heard that Mr Devlin had suffered distress, as Mr McCartan suggested that Peart J. had approved of in the course of an unreported judgment which he delivered on 11 March of this year in the case ofPhilip -v- Ryan and the Bon Secours Hospital.

In my view, I cannot manufacture evidence...

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