Butler v Regan

JurisdictionIreland
JudgeMr. Justice Henry J. Abbott
Judgment Date01 July 2004
Neutral Citation[2004] IEHC 326
CourtHigh Court
Date01 July 2004

[2004] IEHC 326

THE HIGH COURT

[No. 1461P/1987]
BUTLER v. REGAN

BETWEEN

GERARD BUTLER
PLAINTIFF

AND

BRIAN S. REGAN
DEFENDANT

Citations:

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SCANLAN PRACTICE & PROCEDURE IN ADMINISTRATION MORTGAGES SUITS IN IRELAND 1963 53

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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

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PHIPSON EVIDENCE 15ED 2000 306

SILVERDALE & HEWITTS TRAVEL AGENCY LTD V ITALIA TOUR LTD 2001 1 ILRM 464 2000/16/6277

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COURTS ACT 1981

Abstract:

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.

1

Mr. Justice Henry J. Abbott delivered the 1st day of July 2004

2

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.

3

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.

ISSUE OF DELAY
4

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

5

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.

6

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.

7

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.

8

It is appropriate that I would set out the reasons I gave for such ruling which are as follows:-

9

"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 …

10

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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