Butler v Regan
Jurisdiction | Ireland |
Judge | Mr. Justice Henry J. Abbott |
Judgment Date | 01 July 2004 |
Neutral Citation | [2004] IEHC 326 |
Court | High Court |
Date | 01 July 2004 |
[2004] IEHC 326
THE HIGH COURT
BETWEEN
AND
Citations:
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CIVIL LIABILITY ACT 1961
RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561 1981/7/1121
SHEEHAN V AMOND 1982 IR 235
GUERIN V GUERIN 1992 2 IR 287
PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459
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SOUTHERN MINERAL OIL LTD V COONEY 1997 3 IR 549
MARTIN V MOY CONTRACTORS LTD UNREP SUPREME 11.2.1999 1999/17/5117
DUNNE V ESB UNREP LAFFOY 19.10.1999 1999/10/2485
COLLINS V BUS ATHA CLIATH (DUBLIN BUS) & BUS EIREANN UNREP SUPREME 22.10.1999 1999/5/1062
DUIGNAN V CARWAY 2001 4 IR 550
O DOMHNAILL V MERRICK 1984 IR 151
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KELLY V CULLEN & MID WESTERN HEALTH UNREP SUPREME 27.7.1998 1998/22/8653
STOLLZNOW V CALVERT 1980 2 NSWLR 649
BRENNAN V WESTERN HEALTH BOARD & ROSCOMMON CO COUNCIL UNREP MACKEN 18.5.1999 1999/3/496
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ROCHE V CHURCH THE TIMES 23.12.92
ROEBUCK V MUNGOVIN 1994 2 AC 224
MURRAY & GIBSON V COMMISSION TO INQUIRE INTO CHILD ABUSE & ORS UNREP ABBOTT 27.1.2004
COUNTY COURTS (IRL) ORDERS 1890
CARLTONS THE JURISDICTION & PROCEDURE OF THE COUNTY COURTS IN IRELAND
SCANLAN PRACTICE & PROCEDURE IN ADMINISTRATION MORTGAGES SUITS IN IRELAND 1963 53
SOMERS V ERSKINE (NO 2) 1944 IR 368
WILLIAMS ON EXECUTORS & ADMINISTRATORS 9ED 1893 PART IV BOOK II 1658
CARTER V ROSS UNREP MURPHY 8.12.2000
FENNELL LAW OF EVIDENCE IN IRELAND
CANNON & NELLIGAN EVIDENCE
PHIPSON EVIDENCE 15ED 2000 306
SILVERDALE & HEWITTS TRAVEL AGENCY LTD V ITALIA TOUR LTD 2001 1 ILRM 464 2000/16/6277
TRUCK & MACHINERY SALES LTD V GENERAL ACCIDENT FIRE & ASSURANCE CORPORATION PLC UNREP GEOGHEGAN 12.11.1999 1999/24/7888
MULLALLY V DUBLN BUS 1992 1 ILRM 1
MCGRATH V KIELY & ANOR 1965 IR 497
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SINNOTT V QUINNSWORTH LTD 1984 ILRM 523
COURTS ACT 1981
Personal injuries - Medical negligence - Evidence - Failure to diagnose injury - Corroboration - Rule of prudence - Liability - Economic loss - Statute of Limitations - Delay - Actuarial evidence - Assessment of damages - Whether claim should be dismissed by reason of delay - Whether plaintiff’s evidence required corroboration - Courts Act, 1981.
The plaintiff had been involved in a car accident and had received compensation as a result. Subsequently the plaintiff claimed that the doctor who had examined him and had failed to fully diagnose the extent of his injuries and as a result the plaintiff claimed that he had settled his action at an undervalue. The plaintiff contended that there had been a failure to properly diagnose injuries that the plaintiff had received to his right hip. The defendant denied the claims of the plaintiff and in addition submitted that the plaintiff’s action was statute barred. Furthermore it was contended that the plaintiff’s claim was barred by reason of prolonged, inordinate and inexcusable delay. In addition an issue arose as to the nature of evidence that could be tendered in support of the plaintiff’s claim. This arose due to inability of the defendant to tender evidence.
Held by Abbott J in awarding damages to the plaintiff. Due to the inability of the defendant to give evidence, evidence of the plaintiff was not accepted unless it was supported by clear hospital records, doctors’ reports and other such memoranda. In addition it must be consistent with notes made by the plaintiff. Although the total amount of delay by the plaintiff in processing his claim was inordinate it was excusable. In addition a significant degree of acquiescence could be attributed to the defendant. The plaintiff was entitled to the difference between the settlement he might have obtained had his injuries been fully diagnosed and the actual settlement obtained. General damages would be awarded together with damages for loss of job prospects and interest would be awarded under the Courts Act, 1981 to run from the date of issue of the plenary summons.
Reporter: R.F.
Mr. Justice Henry J. Abbott delivered the 1st day of July 2004
The plaintiff who was then an insurance inspector by occupation was seriously injured in a car crash on 29 th February, 1980. The defendant was at all material times a Consultant Orthopaedic Surgeon attached to Jervis Street Hospital, Dublin and treated the orthopaedic aspects of the plaintiff's injuries received in the car crash in Jervis Street Hospital. The plaintiff initiated proceedings claiming compensation for the personal injuries loss and damage suffered by him by reason of the car crash and for the purpose of these proceedings the defendant wrote and furnished to the plaintiff three medical reports dated 14 th May, 1980, 24 th November, 1980, and 11 th February, 1982.
On 15 th February, 1984, the plaintiff compromised his action in respect of the car crash for the sum of £71,843.10 in respect of general damages and £13,156.90 in respect of special damage together with costs of the proceedings. In these proceedings the plaintiff claims damages for personal injuries loss and damage suffered by the plaintiff by reason of the negligence and breach of duty on the part of the defendant in failing to properly, adequately or fully examine diagnose, treat and advise the plaintiff or report to the plaintiff's legal representatives upon all of the injuries and their likely sequalae as a result whereof the compromise of the action of the plaintiff in relation to his car crash was under value and as a result whereof the plaintiff also suffered personal injuries in the general nature of depression. The defence is a full denial as appropriate with a plea of contributory negligence together with a plea that the plaintiff's action is barred by the operation of the Statute of Limitations and without prejudice to the defence that it is barred by reason of the prolonged, inordinate and inexcusable delay on the part of the plaintiff.
Some of the more important dates in relation to delay in this case are as follows:-
16 th February 1987 | Plenary summons issued |
12 th February 1988 | Order for renewal of plenary summons |
17 th June 1988 | Plenary summons served |
9 th September 1991 | Plaintiff's notice of intention to proceed |
8 th October 1992 | Plaintiff's notice of intention to proceed |
25 th January 1996 | Plaintiff' notice of intention to proceed |
21 st November 1996 | Statement of claim delivered |
28 th July 1997 | Amended statement of claim |
5 th November 1999 | Defendant's notice of intention to proceed |
4 th January 2000 | Plaintiff's notice of intention to proceed |
When this case came into the personal injuries list it was delayed by unavailability of witnesses and the foot and mouth crisis and by notice of motion dated 10 th December, 2001, the defendant sought an order from the judge in charge of the list directing the trial of a preliminary issue between the plaintiff and the defendant as to whether the plaintiff has been guilty or had been guilty of such an inordinate and excusable delay in the prosecution of his claim, as to cause prejudice to the defendant and thereby deprive the defendant of fully and properly defending the claim made against him.
This action came on for hearing before me on 16 th April, 2002, and whereas there was a difference of opinion as between counsel in relation as to whether the judge in charge of the list had adjourned the hearing of the notice of motion in relation to an application for a direction as to a preliminary issue to be heard prior to the hearing action or whether the issue was adjourned to the hearing of the action simplicter as part of the defence in the case. I decided to hear a preliminary application by counsel for the defendant to have the notice of motion dealt with prior to the hearing of the action because, by that stage, it was clear that the defence were alleging that the defendant was unable to give evidence, although the correspondence and affidavits leading up to that date had not been so explicit about this fact.
Having heard evidence from the plaintiff in relation to the delay issue and submissions on behalf of both the plaintiff and the defendant I made a ruling that I would not deal with the issue of delay and prejudice as a preliminary issue but would deal with the issue of delay and prejudice in the hearing as a matter of defence.
It is appropriate that I would set out the reasons I gave for such ruling which are as follows:-
"I can make a decision in relation to the application by Mr. Keane to have the issue of delay dealt with as a preliminary issue made prior to the substantive hearing as between the plaintiff and the defendant …
The point of departure in relation to the issue which I have to decide at the present moment is the order of Johnson J. in respect of a motion by the defendant to have the preliminary issue heard some time ago. I am informed by Mr. Keane Senior Counsel that the order of Johnson J. was that the issue as to whether there should be a preliminary issue should be decided by the trial judge. Mr. McGrath Senior Counsel would have a different recollection of the order of Johnson J., to the effect that the decision was the preliminary issue and the defence of delay were to be part of the defence of the action. To my mind it does not matter which interpretation is put on the order, and I would not require any evidence in relation to what happened in court that day (although there does not seem to be any formal order before the court), for the reason that even if Mr. McGrath's interpretation is accepted, circumstances have now changed, and I hold that the order was an interlocutory order, which could be...
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