Crean v Harty

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 22 December 2020
• Neutral Citation: [2020] IECA 364
• Docket Number: Record Number: 2020/71
• Court: Court of Appeal (Ireland)
• Date: 22 December 2020

BETWEEN

DANIEL CREAN

Plaintiff/Appellant

AND

JAMES HARTY, HEATH SERVICE EXECUTIVE

and

SOUTH INFIRMARY - VICTORIA HOSPITAL CORK LIMITED

Defendants/Respondents

[2020] IECA 364

Noonan J.

Murray J.

Collins J.

Record Number: 2020/71

THE COURT OF APPEAL

CIVIL

Personal injuries – Informed consent – Particulars – Plaintiff seeking particulars – Whether the defendants were obliged to provide particulars of a denial pleaded in their defence

Facts: The plaintiff, Mr Crean, had a total right hip replacement in October 2015. The operation was carried out by the first defendant, Mr Harty, in the Victoria Hospital in Cork. Mr Crean alleged that, consequent on the operation, he developed peripheral neuropathy of his right lower leg and sued for that injury and its consequences. He claimed that the surgery was performed without his informed consent. The defendants claimed that they were not liable for any injuries suffered by the plaintiff. Mr Crean’s solicitors then wrote looking for particulars. The defendants’ declined to provide the particulars. The plaintiff then brought a motion to compel the provision of the particulars. The High Court (Cross J) refused the motion ex tempore. The plaintiff appealed to the Court of Appeal against the refusal to direct the particulars. The Civil Liability and Courts Act 2004 was, he said, enacted to provide for “maximum disclosure” in personal injuries litigation. Whatever may be the position generally regarding the provision of particulars of a denial, the plaintiff said that the position in this case was that s. 13(1)(b) of the 2004 Act required the defendants to give “full and detailed particulars” of the denial in paragraph 3(b) of their respective defences that they failed to obtain informed consent. The defendants had failed to give the statutorily prescribed particulars and, accordingly, the plaintiff submitted that the Court could and should direct the provision of such particulars. In response, the defendants said that the requirements of s. 13(1)(b) are complied with by pleading a “straight denial” (or, as it was also characterised, a “flat denial”). The denial at issue was said to be such a denial and thus compliant with the statute. The defendants accepted that, had paragraph 3(b) of the defences been drafted in the form of a positive plea to the effect that they had obtained the informed consent of the plaintiff, the particulars would be appropriate and would have to be provided. But, they said, the plea was a negative plea. They also argued that the particulars impermissibly sought evidence. Finally, they relied on the fact that the plaintiffs’ medical records (including the consent form) had been provided to him. The plaintiff was also aware of what had been advised to him about the risks of the operation and clearly was in a position to instruct an expert; that being so, the defendants said that the particulars were not necessary.

Held by Collins J that the disputed plea in the defendants’ defences was negative in form (each of the defendants “denies that they failed to obtain the Plaintiff’s informed consent”). However, it appeared to Collins J that the plea was in substance a positive plea to the effect that the defendants in fact obtained the plaintiff’s informed consent prior to the index surgery. The defendants accepted – correctly in Collins J’s view – that had the pleading been expressed in such terms, Mr Crean would be entitled to the particulars. It followed, in Collins J’s view, that, quite apart from the provisions of the 2004 Act, the plaintiff was entitled to the particulars.

Collins J held that he did not regard the defendants’ various objections as well-founded. Collins J held that he would set aside the order made by the High Court (including the order for costs in favour of the defendants) and substitute for it an order directing each of the defendants to provide the further and better particulars of their respective defences sought in paragraph 2 of the letters of the plaintiff’s solicitors dated 15 and 17 August 2018.

Appeal allowed.

JUDGMENT of Mr Justice Maurice Collins delivered on 22 December 2020

INTRODUCTION

1 This appeal raises a net but important issue concerning the extent to which section 13(1)(b) of the Civil Liability and Courts Act 2004 ( “the 2004 Act”) obliges a defendant in a personal injuries action to provide particulars of a denial pleaded in their defence.

BACKGROUND

2 The context in which this issue arises may be stated shortly. The Plaintiff, Mr Crean, had a total right hip replacement in October 2015. The operation was carried out by the First Defendant, Mr Harty, in the Victoria Hospital in Cork. Mr Crean had undergone a total right hip replacement in 1986 which was revised in 1989 and the operation in October 2015 was therefore his third surgery on his right hip. He alleges that, consequent on the October 2015 operation, he developed peripheral neuropathy of his right lower leg and sues for that injury and its consequences. Mr Crean does not allege that the surgery was performed negligently. Rather, his claim is that the surgery was performed without his informed consent 1 and, in his Personal Injuries Summons, he sets out various matters in terms of the risks of the procedure which, he says, the Defendants failed to advise him of before his operation in 2015. 2 In essence, it is said that the procedure involved significant additional risks by reason of the fact that he had had two previous surgeries on his right hip In particular, it is said that the risk of significant nerve damage was “ significantly increased” by reason of those previous surgeries. 3 Mr Crean says that he was not warned of these risks.

3 The manner in which the Defendants have pleaded to this claim is central to this appeal. Separate Defences were delivered by the First Defendant and by the Second and Third Defendants but they are in materially identical terms. I take the following from the Defence of the First Defendant, Mr Harty:

“3. The grounds upon which the First Named Defendant claims they not liable for any injuries suffered by the Plaintiff are as follows:

(a) The First Named Defendant denies that they were guilty of negligence and/or breach of duty in the manner alleged in the Personal Injuries Summons.

(b) The First Defendant denies that they failed to obtain the Plaintiff's informed consent prior to surgery on 07 October 2015.

(c) Each and every particular of negligence and/or breach of duty alleged is denied and the Plaintiff is put on strict proof in respect of the alleged negligence and/or breach of duty on the part of the First Named Defendant.”

There are other pleas in the Defences but, apart from a plea to the effect that any alleged negligence, breach of duty or failure to obtain informed consent (all “strenuously denied”) was not causative of any injury or loss, none relates to the issue of informed consent.

4 Mr Crean's solicitors then wrote looking for particulars. In relevant part (certain of the particulars sought related to another aspect of the Defences) the letters for particulars stated as follows (again I use the letter directed to Mr Harty's Defence):

“The first-named defendant by his Defence, having pleaded, inter alia, at paragraph 3(b) thereof that an informed consent to the surgery of 7 ^th October, 2015, had been obtained prior to that surgery:

Give full and detailed particulars of the information and advice provided to the plaintiff prior to the said surgery of 7 ^th October, 2015, which it will be alleged met the requirements of informed consent, stating:

(a) What precise information and/or advice is alleged to have been given to the plaintiff;

(b) The person, or persons, whom it is alleged gave such information and/or advice as each individual mentioned is alleged to have imported to the plaintiff

(c) The dates, times and places when the plaintiff was allegedly given such information and/or advice as is alleged by such person, or persons;

(d) Whether such information and/or advice is alleged to have been provided in writing to the plaintiff. If provided in writing, furnish a true copy of any such written document.”

(hereafter “ the Particulars”)

5 The Defendants' declined to provide the Particulars, stating that:

“This request seeks particulars of a straight denial of a plea contained in the Personal Injury Summons. It is not permissible to raise particulars upon a denial.”

6 The Plaintiff then brought a motion to compel the provision of the Particulars. That motion was heard by the High Court (Cross J) on 24 February 2020. Following a brief hearing, the Judge refused the motion ex tempore, on the basis that the Particulars were sought of a denial and also, it appears, on the basis that the Judge considered that they were a request for evidence. The 2004 Act did not, in the Judge's view, require the Defendants to go further than they had in their defences.

THE APPEAL

7 The Plaintiff appeals the refusal to direct the Particulars. The 2004 Act was, he says, enacted to provide for “ maximum disclosure” in personal injuries litigation. Whatever may be the position generally regarding the provision of particulars of a denial, the Plaintiff says that position here is that section 13(1)(b) of the 2004 Act required the Defendants to give “ full and detailed particulars” of the denial in paragraph 3(b) of their respective Defences that they failed to obtain informed consent. The Defendants had failed to give the statutorily prescribed particulars and, accordingly, the Plaintiff submits that this Court could and should direct the provision of such particulars now. The Plaintiff says that, otherwise, he is at risk of the “ perfect ambush” at trial. While the Plaintiff had been furnished with a copy of the consent form executed by him, the Defendants could at trial seek to make the case that the consent form did not capture all of their...