Burke v Minister for Health

• Jurisdiction: Ireland
• Judge: Mr. Justice Sean Ryan
• Judgment Date: 20 July 2012
• Neutral Citation: [2012] IEHC 304
• Date: 20 July 2012
• Court: High Court

[2012] IEHC 304

THE HIGH COURT

[No. 2881 P./2005]

Burke v Min for Health & Ors

BETWEEN

MICHAEL BURKE

PLAINTIFF

AND

MINISTER FOR HEALTH AND CHILDREN, IRISH BLOOD TRANSFUSION SERVICES, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

SHEEHAN v AMOND 1982 IR 235

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

Ó D ÓMHNAILL v MERRICK 1984 IR 151

GILROY v FLYNN 2005 1 ILRM 290

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(1)

STEVENS v PAUL FLYNN LTD 2008 4 IR 31

DESMOND v MGN LTD 2009 1 IR 737

ANGLO IRISH BEEF PROCESSORS LTD v MONTEGOMERY 2002 3 IR 510

BYRNE v MIN FOR DEFENCE 2005 1 IR 577

QUINN v FAULKNER T/A FAULKNERS GARAGE & MMC COMMERCIALS LTD UNREP HOGAN 14.3.2011 2011 IEHC 103 2011/44/12395

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

GILROY v FLYNN 2005 1 ILRM 290

PRACTICE AND PROCEDURE

Delay

Application for order dismissing claim for want of prosecution - Application seeking extension of time to serve statement of claim - Balance of justice test - Personal injuries - Psychiatric injuries - Failure to notify of blood test results - Serious illness reason for delay - Prejudice - Fair procedures - Long time since events giving rise to claim - Continuing delay - Proposed statement of claim contained no particulars of personal injury - Efficient disposal of court proceedings - Whether delay inordinate and inexcusable - Whether in interests of justice to allow case proceed - Whether defence prejudiced -Whether acquiescence in delay - Whether substantial risk of fair trial not being possible - Rainsford v Limerick Corporation [1995] 2 ILRM 561; Sheehan v Amond [1982] IR 235; Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459; Ó Domhnaill v Merrick [1984] IR 151; Gilroy v Flynn [2004] IESC 98, [2005] ILRM 290; Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 31; Desmond v MGN Ltd [2008] IESC 56, [2009] 1 IR 737; Anglo Irish Beef Processors Limited v Montgomery [2002] 3 IR 510; Byrne v Minister for Defence [2005] IEHC 147, [2005] 1 IR 577 and Quinn v Faulkner [2011] IEHC 103, (Unrep, Hogan J, 14/3/2011) considered - European Convention on Human Rights 1950, art 6(1) - Claim dismissed (2005/2881P - Ryan J - 20/7/2012) [2012] IEHC 304

Burke v Minister for Health and Children

Facts The defendants brought a motion seeking an order dismissing the plaintiff's claim for want of prosecution. The plaintiff brought a motion in response, seeking to extend the time for service of his statement of claim in the action. The plaintiff instituted proceedings by way of plenary summons on 23 August 2005, claiming damages for negligence arising out of the delay by the predecessor of the second named defendant in advising the plaintiff that his donated blood samples had tested positive for Hepatitis C. The events giving rise to the claim occurred in 1992 and 1993. There was a delay of over 6 years between the entry of appearances on behalf of the defendants and the plaintiff's service of Notice of intention to proceed. The plaintiff sought to explain the delay in prosecuting his claim by relying on medical evidence to show that he was seriously unwell between 2005 and undergoing a liver transplant in 2009 and for a period of time thereafter. However, the plaintiff failed to state anything about the role of his solicitor during the intervening period. The defendants argued that the plaintiff was guilty of inordinate and inexcusable delay and pointed out that the proposed statement of claim did not actually contain any particulars of personal injury or special damages. The second named defendant submitted that it had been prejudiced in defending the proceedings and was denied a trial within a reasonable period.

Held by Ryan J. in dismissing the plaintiff's claim for want of prosecution: that it was clear from the medical reports submitted that the plaintiff was seriously ill between 2005 and 2009. However, the delay in this case had not concluded at the date of this hearing as the proposed statement of claim did not contain details of the alleged personal injuries suffered or special damages incurred by the plaintiff and there was no indication of when that information would be available. The plaintiff was guilty of inordinate and inexcusable delay and owing to his failure to offer any explanation for the inactivity of his solicitor over the period of six years; he was vicariously responsible for any fault on the part of his solicitor. If the case proceeded, the defendants would be required to seek medical evidence regarding the effect the delayed diagnosis had on the plaintiff some 20 years ago and consequently there was prejudice to the defendants. To permit this case to proceed would offend the constitutional principle of fairness of procedures and it would be unfair to the defendants to allow the action to proceed. Furthermore, there was a substantial risk that it would not be possible to have a fair trial owing to the very long time since the events giving rise to the claim.

1 JUDGMENT of Mr. Justice Sean Ryan delivered the 20th day of July 2012.

2 There are two motions before the court. The first is brought on behalf of the State defendants, namely, the Minister for Health and Children and the third and fourth defendants, for an order dismissing the plaintiff's claim for want of prosecution. The second defendant, the Irish Blood Transfusion Service, supports this application. The plaintiff has a rival motion, brought in response to the application to dismiss and seeking an extension of time in which to serve his statement of claim in the action.

3 The facts are that in February 1992 and again in September 1993 the plaintiff donated blood to the Blood Transfusion Service Board, the predecessor of the second defendant. He claims that his blood tested positive for Hepatitis C on each occasion but the Board failed in its duty to notify him of that result until on or about the 4 ^th October, 1993. This failure represented a variety of legal wrongs and that he suffered personal injuries, loss and damage as a result.

4 The background to the issuing of proceedings was the publication in March, 2005 of an expert report procured by the BTSB. In August, the Board issued a public apology in respect of the failures that were disclosed in the report. On the 12 ^th August, 2005 the Board sent a personal apology to the plaintiff. He instituted his proceedings by way of plenary summons on the 23 ^rd August, 2005 claiming damages for negligence, breach of duty, trespass to the person and breach of constitutional rights.

5 The Irish Blood Transfusion Service put in an Appearance on the 21 ^st September, 2005. The State defendants filed and served an Appearance dated 26 ^th October, 2005. Then there was a delay of more than six years before the next relevant development on the 14 ^th November, 2011, when the plaintiff served Notice of Intention to Proceed. On the 12 ^th December, 2011, the State defendants - the first, third and fourth defendants issued their notice of motion to dismiss the claim for want of prosecution. On the 22 ^nd February, 2012, the plaintiff issued his notice of motion seeking extension of time for the delivery of the statement of claim. The plaintiff had attempted to serve the statement of claim on the 22 ^nd December, 2011 but the defendants did not consent to such service at which time the motion to dismiss had been issued.

The plaintiff's explanation for the delay.

6 The plaintiff affidavit is dated the 20 ^th February, 2012. At para. 5 he said that at the time when he issued his proceedings he was suffering from cirrhosis secondary to chronic Hepatitis C infection and ongoing mental health difficulties and he exhibited a number of medical reports to which I shall refer later. He then said:-

"Once proceedings had been issued, I did not then pursue the matter with my legal advisers; I did not understand the legal process and simply assumed that I would be informed of a date for trial."

7 He said that he managed to continue working, but was suffering ongoing serious health difficulties, which included an episode of ascites and hepatic encephalopathy in or about November 2006, during which he was extremely unwell. At some point subsequent to that he had to give up working and his condition deteriorated further. He said that he and his doctors were extremely concerned about his health and that was his principal preoccupation at the time. Mr. Burke refers to letters of October, 2007 which do indeed record that his quality of life had significantly disimproved and that he was suffering from severe fatigue. Mr. Burke underwent a liver transplant at St. Vincent's Hospital in January 2009, and he had a prolonged recovery thereafter.

8 Mr. Burke makes the case that he was extremely unwell in the period between the issuing of these proceedings in 2005 and his recovery following the liver transplant surgery that he underwent in January 2009 and that is the reason for his delay in progressing his case. At paragraph 9 of his affidavit he says:-

"During the period, as aforesaid, and given the various health difficulties I was suffering, as just set out, I was not really in a position to focus on the proceedings that had been issued. It was only after regaining some normality in life, after recovery from my liver transplant (which is ongoing), that I got around to pursuing matters, and to attempting to advance these proceedings."

9 He argues at para. 11, that there is no prejudice to the defendants if these proceedings are to continue. He undertakes to advance the action expeditiously.

"Whereas I accept that there has been significant delay in my prosecuting these proceedings, I am advised and I believe that such delays are excusable, in the circumstances of my physical and mental health, as averred...