Cloonan v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 27 July 2018
• Neutral Citation: [2018] IEHC 454
• Docket Number: [2013 No 3355 P.]
• Court: High Court
• Date: 27 July 2018

[2018] IEHC 454

THE HIGH COURT

Kelly P.

[2013 No 3355 P.]

BETWEEN

ANGELO CLOONAN

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

AND

DR. KISHAN BROWNE

DEFENDANTS

Negligence – Liability – Damages – Plaintiff seeking damages – Whether the defendants were guilty of negligence

Facts: The deceased, Ms Cloonan, on the night of 17th April, 2011, was admitted to the Emergency Department at University College Hospital, Galway following a significant episode of self-harm by overdose of prescribed and other medication. She was discharged from that hospital on the afternoon of 18th April, 2011. In the early hours of the morning of the 19th April, 2011, she ended her life by hanging herself at the family home. Her husband, Mr Cloonan (the plaintiff), brought proceedings for himself and on behalf of the dependents of the deceased, the three children of the marriage. The Health Service Executive was cited as the first defendant in its capacities as owner, occupier, manager and controller of the hospital. The second defendant, Dr Browne was, at the material time, engaged as a doctor at the hospital in the role of a senior house officer in psychiatry. The plaintiff complained that the defendants were guilty of negligence and breach of duty (including statutory duty) in their failure, inter alia, properly to assess and diagnose the imminent risk of the deceased committing suicide which resulted from her being discharged home when such ought not to have occurred. As a consequence of the death of the deceased, the plaintiff and dependents suffered great mental distress, loss and damage. The plaintiff also suffered direct financial loss and loss of consortium. The defendants fully denied any liability to the plaintiff and the dependents of the deceased and refuted the allegations of negligence and breach of duty laid against them.

Held by the High Court (Kelly P) that the plaintiff had made out a case in negligence against the defendants. Kelly P held that the plaintiff must, therefore, succeed on the issue of liability. Dealing first with damages for mental distress, Kelly P noted that Mrs Cloonan died prior to 11th January, 2014 and that the limit of damages recoverable by the plaintiff and the dependants of the deceased was €25,394.76. Kelly P proposed awarding that amount in full and directed that it be disbursed as to 50% to the plaintiff and the balance to be distributed in equal shares between the three children. Turning to the question of damages for loss of consortium, as regards the general damages, Kelly P proposed awarding the plaintiff damages in the sum of €25,000. Turning to the more general question of financial loss, Kelly P did not propose awarding any sum to the children. Kelly P proposed measuring the net loss to the plaintiff in the sum of €200,000. Kelly P noted that the sum for special damage was agreed as €12,826.05.

Kelly P held that the total sum awarded for damages in this case would be €263,220.81.

Relief granted.

JUDGMENT of Mr. Justice Hanna delivered on the 27th day of July, 2018.

1 The plaintiff is a health care worker, presently residing in Galway and previously at 30, Ballinfoyle Park, Headford Road, Co. Galway. He was born on the 13th August, 1964. He brings these proceedings for himself and on behalf of the dependents of his late wife, Josephine Cloonan. The dependents within the statutory meaning of the Civil Liability Act, 1961, are the plaintiff and the three children of his marriage to Josephine, namely Stephen, Stephanie and Jennifer. All of these are of full age.

2 Josephine was born on 20th March, 1966. Prior to her death she was employed on a full time basis by An Post. The tragic circumstance which gives rise to these proceedings took place in the early hours of the morning of Tuesday the 19th April, 2011. Josephine ended her life by hanging herself at the family home.

3 Late on the night of the preceding Sunday (17th April) the deceased had been admitted to the Emergency Department at University College Hospital, Galway following a significant episode of self-harm by overdose of prescribed and other medication. She was discharged from that hospital on the afternoon of the next day, 18th April. She was taken home by the plaintiff and their son Stephen. Her daughters made the harrowing discovery of her body after searching for her in the early hours of the next morning.

4 The Health Service Executive is cited as the first named defendant in its capacities as owner, occupier, manager and controller of University College Hospital Galway. That defendant, inter alia, employs doctors and nurses at the said hospital.

5 The second named defendant was, at the material time, engaged as a doctor at the said hospital in the role of a senior house officer in psychiatry. The defendants were jointly represented. Where I refer to the defendant in the singular, I intend reference to Dr. Browne.

6 To outline the case in the most general of terms, the plaintiff alleges, inter alia, that the defendants failed properly to assess, diagnose and treat the deceased. He complains that she was sent home without proper regard to her mental state of well-being and should have been detained in the hospital. The plaintiff complains that the defendants were guilty of negligence and breach of duty (including statutory duty) in their failure, inter alia, properly to assess and diagnose the imminent risk of Josephine Cloonan committing suicide which resulted from her being discharged home when such ought not to have occurred.

7 As a consequence of the death of Josephine Cloonan, the plaintiff and dependents have suffered great mental distress, loss and damage. The plaintiff has also suffered direct financial loss and loss of consortium.

8 The defendants, while recognising the scale of the tragic events and expressing sympathy with the deceased's family, nevertheless fully deny any liability to the plaintiff and the dependents of the deceased and refute the allegations of negligence and breach of duty laid against them.

9 The defendants assert that, at all material times, they acted in a manner compliant with general and approved psychiatric practice as would be adopted by other practitioners of like specialisation and skill when acting with ordinary care. Appropriate treatment, diagnosis and assessment of the deceased, including risk assessment, was carried out in a manner and to the extent required by the circumstances. They say that the deceased was offered in-patient care but declined this. An action and treatment plan was agreed both with the deceased and the plaintiff.

Background

10 The plaintiff had been married to the deceased for 25 years by the time of her death. Their wedding anniversary was on the 5th April before she died. The plaintiff says that, up to times recent to her death, it had been a happy and harmonious marriage with no more than the usual ‘ups and downs’ of married life. They had three children, all of whom appeared to have got on very well with their parents.

11 The plaintiff worked as a carer in a nursing home. Josephine was in full time employment with An Post. Her job involved cleaning and some security tasks which included locking and unlocking the premises where she worked. Both of their jobs appear to have been reasonably secure. The deceased had been earning in the order of €40,000 per annum and the plaintiff around €20,000. The plaintiff maintained that they were financially comfortable, were not in any debt and had savings in the order of €10,000. They had been operating their financial arrangements through a joint bank account. In general terms, up to a point in recent times, they seem to have been following an unremarkable but basically happy married life, both socially and domestically.

12 In the background, however, dark family secrets lurked dormant, only to emerge in the year or so before Josephine's death. During their courtship, Josephine made revelations to Angelo about sexual abuse which she had suffered over a prolonged period during her childhood years, meted out to her by her brother. These allegations included similar, perhaps more extensive, abuse being visited by him upon her sister. The plaintiff said that the deceased decided to put these experiences behind her. The issue did not again arise until some eighteen months before her death.

13 Around that time, the sister in question had informed Josephine that she proposed to take action against their brother. This resulted in the whole ‘business’ being resurrected. With reluctance, Josephine became involved in the proceedings and made a statement to the gardaí. According to the plaintiff, this was a traumatic experience for the deceased and affected her terribly. All of this put considerable pressure on their relationship. She underwent counselling to help her to come to terms with these developments.

14 According to the plaintiff's account, all of this cumulated in his leaving the family home a few days before the deceased killed herself. Mr. Cloonan maintained this was a temporary break with the hope that this ‘space’ would help them to deal with the adverse impacts of all of these events on their relationship. They still communicated, however, and throughout the difficulties they continued to maintain their joint bank account. He simply moved to a bedsit in Oranmore.

15 Even by this point in the narrative, significant controversy arises. As the evidence in the case evolved, including a number of adjournments, discovery ordered mid-trial and the re-visiting of evidence, the tone of the case changed somewhat. Further suggestions of childhood sexual abuse emerged, this time with the plaintiff as the alleged victim. The circumstances and measure of his separation from the deceased was challenged vigorously. Allegations of perjury were levelled against him - an uncommon occurrence in a case of these unfortunate, complex and tragic...