Claire Sullivan (A Person of Unsound Mind not so Found Suing by her Mother and Next Friend Caroline Sullivan) v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 28 October 2021
• Neutral Citation: [2021] IECA 287
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2020/261

Between/

Claire Sullivan (A Person of Unsound Mind Not So Found Suing by her Mother and Next Friend Caroline Sullivan)

Plaintiff/Respondent

and

Health Service Executive

Defendant/Appellant

[2021] IECA 287

Costello J.

Donnelly J.

Noonan J.

Record No.: 2020/261

THE COURT OF APPEAL

Personal injuries – Damages – Risk of an unfair trial – Appellant seeking to dismiss the proceedings – Whether requiring the appellant to attempt to defend the claim would be unfair, unjust and unreasonable

Facts: The plaintiff/respondent, Ms Sullivan, made a claim for damages for personal injuries sustained by her allegedly as a consequence of the management by the defendant/appellant, the Health Service Executive, of the circumstances leading to her birth on 9th May, 1977. The personal injuries summons was issued on 2nd July 2018. The defendant brought a motion to dismiss the proceedings on the grounds, inter alia, that to require the defendant to attempt to defend the claim would be unfair, unjust and unreasonable. Having heard the motion, the High Court (Cross J) refused the relief sought. The defendant appealed to the Court of Appeal against that refusal. The plaintiff submitted that the question to be determined was whether the High Court judge exercised his discretion within the parameters of the reasonable exercise of his discretion in determining that the defendant had not established a deficit in witness availability, or in the medical records, such as would lead to a real or substantial risk of an unfair trial or unjust result. The defendant relied on matters which went beyond the risk of an unfair trial or result. These concerned the consequences of no explanation having been given by the plaintiff for the delay and the importance of the public interest in ensuring that the trials took place within a reasonable time.

Held by Donnelly J that, having considered each of the aspects of the absent records and unavailable witnesses, the motion judge did not err in holding that the defendant had not discharged the onus of establishing that there was a real and substantial risk of an unfair trial or an unjust result based upon the unavailability of evidence, documentary and testimonial, because of the passage of time in this case. Donnelly J held that the defendant had not established its case that there was a real risk that it could not get a fair trial or have a just result; the judge hearing the trial would ensure that should such a risk be established at the hearing of the action the defendant would not be prejudiced. Donnelly J held that unexplained delay is not to be equated automatically with inexcusable or culpable delay. Donnelly J was satisfied that the defendant had not established that this was such a clear case that it could be said prior to the trial commencing that the defendant could not have a constitutionally fair trial; the trial judge would be in a position to assess the fairness of the trial in light of the evidence before him or her.

Donnelly J held that the motion judge’s order to refuse the defendant the relief sought must be upheld. Given that the defendant’s appeal had failed, Donnelly J held that the plaintiff was entitled to the costs of the appeal, to be adjudicated in default of agreement.

Appeal dismissed.

JUDGMENT ofMs. Justice Donnellydelivered this 28th day of October, 2021

Introduction

1 The respondent to this appeal (hereinafter “the plaintiff”) is now 44 years old. She has made a claim for damages for personal injuries sustained by her allegedly as a consequence of the management by the appellant (hereinafter “the defendant”) of the circumstances leading to her birth on the 9th May, 1977. The personal injuries summons was issued on 2nd July 2018, some 41 years after her birth. The plaintiff suffers from brain damage, is intellectually disabled and is in sheltered, part time employment. Although no finding has been made, the defendant does not contest that she is under, and has at all material times been under a disability within the meaning of the Statute of Limitations, Act 1957 (“the 1957 Act”).

2 The defendant brought a motion to dismiss the proceedings on the grounds, inter alia, that to require the defendant to attempt to defend the claim would be unfair, unjust and unreasonable. Having heard the motion, the High Court (Cross J.) refused the relief sought. The defendant now appeals against that refusal.

Factual Background

3 On the 8th May, 1977, the plaintiff's pregnant mother presented herself to St. Brigid's Hospital, Carrick-on-Suir (hereinafter “St. Brigid's”), a small District hospital, which had three maternity beds with no resident doctor, though there was a local GP who provided cover. The plaintiff claims that her mother advised the nurse in attendance, Nurse Anthony, of a bleed that she had during the previous night. The plaintiff's mother was admitted under the care of Nurse Antony, who recorded the bleed in the nursing notes as a “heavy show”. The plaintiff claims that her mother continued to bleed and that in particular, Nurse Cox who came on duty as the night nurse saw that the mother's pad was heavily bloodstained and then noticed other heavily blood-stained pads in a utility room. Nurse Cox phoned the doctor in charge and he arranged for the plaintiff's mother to be taken by ambulance to Clonmel Hospital. The ambulance came from Clonmel, a journey of approximately 30 minutes. On the return journey to Clonmel, the plaintiff was born in the ambulance.

4 The plaintiff was kept in St. Joseph's Hospital, Clonmel (now South Tipperary General Hospital and hereinafter referred to as “St. Joseph's”) until she was transferred to Ardkeen Hospital, Waterford (now University Hospital Waterford and hereinafter “Ardkeen”) where she remained an inpatient until the 28th May, 1977. The plaintiff's mother was discharged from St. Joseph's on the 28th May, 1977.

5 The plaintiff intends to call expert evidence showing that she suffered from chronic partial asphyxia which was initiated by her mother's ante partum haemorrhage and which continued until her delivery.

6 The clinical records from St. Brigid's and from Ardkeen are available. The St. Brigid's records are contained in a ledger which recorded the nursing notes (the plaintiff's mother was not seen by a doctor there). The notes from St. Joseph's are no longer available, the plaintiff's solicitor having been told that they were destroyed in a fire in 2001. The Ardkeen records exist and they include a discharge letter from St. Joseph's written by a physician in St. Joseph's. This letter sets out details in relation to the plaintiff's condition on arrival at St. Joseph's and thereafter. The plaintiff's solicitor has been advised by the National Ambulance Service (a part of the defendant statutory body) that patient care records were not maintained at the time and that it had no records regarding the plaintiff's delivery. The defendant's solicitor has averred that the ambulance records are no longer available.

7 Nurse Cox is alive and has been interviewed by both parties. She has been listed as a witness for the plaintiff in their schedule of witnesses.

8 Nurse Antony is also alive. Neither party appears to have made contact with her. The solicitor for the defendant averred in her affidavit grounding the motion to dismiss, that they had contact details for her but had been advised by their own manager in charge of “Older Persons Services” that Nurse Antony had retired in 1990 due to ill-health and was now in her 80s and in poor health. The manager expressed concern that Nurse Antony would find any approach regarding this case distressing. In those circumstances, having consulted with counsel, a decision was made that, in balancing the distress that any approach to Nurse Anthony would cause against the likelihood of her having any useful recollection of this case given the duration of her retirement and her state of health, it would be inappropriate to contact her.

Procedural History

9 A warning letter advising of the plaintiff's claim was sent on the 25th January, 2018. The personal injuries summons was issued on the 2nd July, 2018 and served on the defendants on the 12th July, 2018.

10 The plaintiff voluntarily provided the medical records from St. Brigid's and Ardkeen to the defendant on the 20th November, 2018.

11 The plaintiff was obliged to bring a motion for judgment in default of defence which was responded to by a replying affidavit of the defendant on the 26th March, 2019 saying that they had been unable to identify the individuals named in the records. The solicitor for the defendant states in her grounding affidavit that the defendant did not commence seeking information about the clinicians involved in the mother's care until September 2019.

12 The defence was only delivered on the 22nd October, 2019 following two motions for judgment in default of defence.

13 Notice of trial was served on the defendant on the 23rd October, 2019. The matter was specially fixed for hearing on the 16th June, 2020. The hearing was adjourned by reason of the cessation of sittings of the High Court due to COVID-19. It was specially fixed for hearing on the 22nd October, 2020. The plaintiff had procured all necessary expert reports and informed the court that the matter was ready to proceed on the 16th June, 2020. The defendant did not demur or indicate that there was any difficulty with the case proceeding either generally or on the date assigned.

14 On the 15th October, 2020 the defendant filed its notice of motion and sought to have it returned to the date of hearing. Neither the trial nor the motion could proceed on the 22nd October, 2020 due again to the COVID-19 pandemic.

15 The defendant's motion was “decoupled” from the trial and was heard by Cross J. on the 10th November, 2020 and judgment was delivered on the 11th November, 2020.

The hearing of the...