Creedon v Depuy International Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 20 December 2018
• Neutral Citation: [2018] IEHC 790
• Docket Number: [2011 No. 2015 P.]
• Court: High Court
• Date: 20 December 2018

[2018] IEHC 790

THE HIGH COURT

O'Hanlon J.

[2011 No. 2015 P.]

BETWEEN

JOSEPH CREEDON

PLAINTIFF

AND

DEPUY INTERNATIONAL LIMITED

DEFENDANT

Personal injuries – Negligence – Preliminary objection – Plaintiff seeking damages for negligence, breach of duty, breach of statutory duty and breach of the Liability for Defective Products Act 1991 – Whether the plaintiff’s action against the defendant came within the ambit of s. 3(d) of the Personal Injuries Assessment Board Act 2003

Facts: The plaintiff, Mr Creedon, on 22nd May, 2007, received a right total hip replacement using an articular surface replacement metal-on-metal hip prosthetic manufactured by the defendant, Depuy International Ltd. On 27th June, 2007, he received a left total hip replacement using the same prosthetic. The prosthetic in question was found to be defective and in August, 2010, the defendant conducted a worldwide voluntary recall of the product. The plaintiff’s surgeon alerted the plaintiff to the defect in October, 2010 and the plaintiff initiated proceedings against the defendant on 22nd November, 2010. It was alleged that as a result of the defective prosthetics, the plaintiff was in significant pain and discomfort and revision surgeries on both hips would be required in the future, as well as other medical treatment, including bi-annual MRI scans and annual ion level reviews. A personal injuries summons, seeking damages for negligence, breach of duty, breach of statutory duty and breach of the Liability for Defective Products Act 1991 was issued on 3rd March, 2011. The defendant did not file a defence until 18th June, 2013. The defence that was eventually furnished contained the following “preliminary objection”: “The plaintiff is precluded from maintaining a claim for personal injuries against the Defendant pursuant to the provisions of the Personal Injuries Assessment Board Act 2003 and the Personal Injuries Assessment Board (Amendment) Act 2004 and/or the Civil Liability and Courts Act 2004 as the Plaintiff has failed to obtain an authorisation from the Injuries Board to maintain such a claim.” Based on this preliminary objection, the single issue to be tried in this case was whether or not the plaintiff’s action against the defendant came within the ambit of s. 3(d) of the Personal Injuries Assessment Board Act 2003; that is, whether the plaintiff ought to have applied to the Personal Injuries Assessment Board prior to maintaining a claim for personal injuries against the defendant, or whether the action was contained within one of the exclusionary categories described in s. 3(d). If the action did not come within the ambit of s. 3(d), the defendant submitted that these proceedings must be dismissed in light of the plaintiff’s failure to comply with the requirement, in s. 12 of the 2003 Act, that proceedings under the 2003 Act not be brought until the Personal Injuries Assessment Board issues an authorisation.

Held by O’Hanlon J that with the High Court unable to find any aspect that could operate to bring the proceedings beyond the reach of the decision in Murphy v DePuy International Limited [2015] IEHC 153, precedent bound the Court. O’Hanlon J noted that, in Murphy, the Court of Appeal found the appeal proceedings moot, as the plaintiff in that case had other proceedings ongoing, by virtue of a Personal Injuries Assessment Board authorisation having been sought as a precautionary measure on receipt of the defence. The Court was unable to depart from the decision in Murphy that authorisation from the Personal Injuries Assessment Board must be sought before an action of this type is initiated. O’Hanlon J held that none of the criteria expressed in Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, nor any other reason for departing from a decision, applied here.

O’Hanlon J held that she found in favour of the defendant in relation to the preliminary objection.

Relief refused.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 20th day of December, 2018

Introduction

1 On 22nd May, 2007, the Plaintiff received a right total hip replacement using an articular surface replacement (‘ASR’) metal-on-metal hip prosthetic manufactured by the defendant. On 27th June, 2007, he received a left total hip replacement using the same prosthetic. The prosthetic in question was found to be defective and in August, 2010, the Defendant conducted a worldwide voluntary recall of the product. The Plaintiff's surgeon alerted the Plaintiff to the defect in October, 2010 and the Plaintiff initiated proceedings against the Defendant on 22nd November, 2010. It is alleged that as a result of the defective prosthetics, the Plaintiff is in significant pain and discomfort and revision surgeries on both hips will be required in the future, as well as other medical treatment, including bi-annual MRI scans and annual ion level reviews. A personal injuries summons, seeking damages for negligence, breach of duty, breach of statutory duty and breach of the Liability for Defective Products Act 1991 was issued on 3rd March, 2011.

2 The Defendant did not file a defence until 18th June, 2013. The defence that was eventually furnished contained the following ‘ preliminary objection’:

‘The plaintiff is precluded from maintaining a claim for personal injuries against the Defendant pursuant to the provisions of the Personal Injuries Assessment Board Act 2003 and the Personal Injuries Assessment Board (Amendment) Act 2004 and/or the Civil Liability and Courts Act 2004 as the Plaintiff has failed to obtain an authorisation from the Injuries Board to maintain such a claim.’

3 Based on this preliminary objection, the single issue to be tried in this case is whether or not the Plaintiff's action against the Defendant comes within the ambit of s. 3(d) of the Personal Injuries Assessment Board Act (‘the 2003 Act’). That is, whether the Plaintiff ought to have applied to the Personal Injuries Assessment Board (‘PIAB’) prior to maintaining a claim for personal injuries against the Defendant, or whether the action is contained within one of the exclusionary categories described in s. 3(d). If the action does not come within the ambit of s.3(d), the Defendant submits that these proceedings must be dismissed in light of the Plaintiff's failure to comply with the requirement, in s. 12 of the 2003 Act, that proceedings under the 2003 Act not be brought until the PIAB issues an authorisation.

4 S. 3 of the 2003 Act provides:

‘This Act applies to the following civil actions—

a) a civil action by an employee against him or her employer for negligence or breach of duty arising in the course of the employee's employment with that employer,

b) a civil action by a person against another arising out of that other's ownership, driving or use of a mechanically propelled vehicle,

c) a civil action by a person against another arising out of that other's use or occupation of land or any structure or building,

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).’

5 S. 12(1) of the 2003 Act provides:

‘Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46 (3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim.’

Defendant's Submissions

6 The Defendant argues that the Plaintiff's action does not come within any of the three types of civil action excluded from the requirement to obtain PIAB authorisation described in s. 3(d) of the 2003 Act, and that authorisation from the PIAB, as provided for in s. 12 of the 2003 Act, was therefore required before proceedings could be brought. In support of this, the Defendant relies upon the High Court decision of Faherty J. in Murphy v. DePuy International Limited [2015] IEHC 153.

Murphy v. DePuy International Limited

7 In Murphy v. DePuy, with facts very similar to those of the within proceedings, the Plaintiff had similarly not obtained authorisation under s. 12 of the 2003 Act before maintaining a personal injuries claim against the Defendant. The same preliminary objection to lack of PIAB authorisation was pleaded on behalf of the Defendant. The Plaintiff sought a preliminary ruling as to whether an authorisation from the PIAB was required before institution of proceedings.

8 The Plaintiff in Murphy argued that s. 3(d) of the 2003 Act was a context-driven provision, with the focus not on injury or cause of action, but factual context.

‘It is therefore relevant that the alleged defective medical product, the subject of the within proceedings, was not received by the plaintiff under any arrangement between her and the defendant or its servants or agents; rather it was received in the course of orthopaedic advice and treatment from an orthopaedic surgeon. The plaintiff's claim therefore arises in the context of advice and surgical treatment from an orthopaedic consultant surgeon and thus falls within the provisions of a health service to the plaintiff, thereby obviating the requirement for an authorisation.’

9 The words ‘arising out of the provision of any health service to a person’ in s. 3(d), it was submitted in Murphy, formed an ‘omnibus clause.’ The other s. 3(d) clauses were merely examples of the types of health service which may benefit from the exemption provided. The Plaintiff relied on dicta of O'Neill J. in Gunning v. National Maternity Hospital and Eurosurgical Limited and Richard Wolfe GMBH [2008] IEHC 352, of Hedigan J. in Carroll v. Mater Misericordiae Hospital [2011] IEHC...