Carroll v Mater Misericordiae Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 08 June 2011
• Neutral Citation: [2011] IEHC 231
• Docket Number: [2008 No. 3084 P]
• Court: High Court
• Date: 08 June 2011

[2011] IEHC 231

THE HIGH COURT

[No. 3084P/2008]

Carroll v Mater Misericordiae Hospital

BETWEEN

PATRICIA CARROLL

PLAINTIFF

AND

MATER MISERICORDIAE HOSPITAL

DEFENDANTS

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(D)

KELLY v BOARD OF GOVERNORS OF ST LAURENCES HOSPITAL 1988 IR 402 1989 ILRM 437 1988/9/2420

AG, PEOPLE v KENNEDY 1946 IR 517

DILLON v MIN FOR POSTS & TELEGRAPHS UNREP SUPREME 3.6.1981 1981/9/1589

SHERRY v PRIMARK LTD T/A PENNYS & GROSVENOR CLEANING SERVICES LTD 2010 1 IR 407 2010 2 ILRM 198 2010/47/11796 2010 IEHC 66

GUNNING v NATIONAL MATERNITY HOSPITAL & ORS 2009 2 IR 117 2008 27 6038 2008 IEHC 352

INTERPRETATION ACT 2005 S5

PERSONAL INJURIES ASSESSMENT BOARD

Authorisation

Personal injury - Medical treatment exclusion - Nursing care - Health service - Whether claim excluded from procedure - Gunning v National Maternity Hospital [2008] IEHC 352, [2009] 2 IR 117 followed - Personal Injuries Assessment Board Act 2003 (No 46), s 3(d) - Action struck out (2008/3084P - Hedigan J - 8/6/2011) [2011] IEHC 231

Carroll v Mater Misericordiae

1 Judgment of Mr. Justice Hedigandelivered on 8th day of June, 2011.

2 1. This proceeding is in the nature of a preliminary hearing to determine whether the plaintiff's action falls within s. 3 of the provisions of the Personal Injuries Assessment Board Act 2003 (PIAB Act) or whether it is excluded by virtue of the provisions of subsection (d).

3 2. Section 3 of the above Act provides for the application of the Act to a range of civil actions. It provides as follows:

4 2 "3. This Act applies to the following civil actions -

5 (a) ....,

6 (b) ....,

7 (c) ....,

8 (d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person)."

9 3. The determination of this issue is of crucial importance for the plaintiff as it will determine whether or not the action is statute-barred.

10 4. The background facts are as follows; the plaintiff is a housewife born on the 26 ^th January, 1956. In or about the 30 ^th May, 2005 whilst present as an in-patient in the Mater Hospital, whilst she was on medication consisting of a number of drugs, she left her bed and unaccompanied went to the bathroom. Whilst entering the bathroom, she became dizzy, fainted and fell. As a result she suffered severe personal injury.

11 5. It is the defendant's defence, inter alia, that her claim is statute-barred because it is an action to which the above Act does not apply and consequently is one which is required to be brought within two years of the date of the accident, i.e. the 29 ^th May, 2007. The personal injuries summons was issued on the 17 ^th April, 2008. If the Act does apply then, subject to a date of knowledge question which I am not asked to address, the plaintiff's claim may not be statute-barred.

6. The plaintiff's submissions

12 Mr Barron for the plaintiff submits the defendant clearly had a duty of nursing care but that this is not one excluded from the Act by virtue of subs. (d). In this regard I am referred to Kelly v. Board of Governors of St. Laurence's Hospital [1988] I.R. 402 at p. 406. Finlay C.J. stated therein:

"I am satisfied, however, that as appears from the form of the question left to the jury, the propriety of which is not challenged, that this is more precisely a case where the issue is one of nursing care and attention than one where the allegation of negligence is to be categorised as negligence in medical treatment."

13 He submits on this authority that nursing care is distinct from medical care. He further submits that the exclusion provision of 3(d) seems intended to exclude casesof professional negligence and more particularly medical negligence from the Act. The accident that occurred herein arose out of nursing care and not medical care. He further submits that the only part of the exclusion that might cover the case is that which refers to an action "arising out of the provision of any health service". He submits that nursing cannot be such a service because if it were it would be so vague and wide in its application that nobody would know what was covered.

14 7. In interpreting "provision of a health service" the Court should look to the context. In this regard, the plaintiff relies upon The People v. Richard Kennedy [1946] I.R. 517 and Dillon v. Minister for Posts and Telegraphs (Henchy J., 3 ^rd June, 1981). This context he argues is one where the apparent exclusion of medical negligence is all that is being provided. All other action including those arising from nursing care are not contained in the exclusion clause and therefore the Act applies. In this regard he also relies upon the judgment of O'Neill J. in Sherry v. Primark [2010] I.R. 407. I am referred to page 11 of the judgment, 5.3 where dealing with the same section, the learned Judge observed:

"The only actions that are...