Cunningham v Health Service Executive & Monaghan County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 29 March 2011
• Neutral Citation: [2011] IEHC 124
• Court: High Court
• Date: 29 March 2011

[2011] IEHC 124

THE HIGH COURT

[No. 2102P/2004]

Cunningham v Health Service Executive & Monaghan Co Council

BETWEEN

AIDAN CUNNINGHAM

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND MONAGHAN COUNTY COUNCIL

DEFENDANTS

DONEGAN v MIN FOR EDUCATION & ORS UNREP O'NEILL 16.3.2007 2007/15/3192 2007 IEHC 119

HEALTH ACT 1970 S37(5)

HEALTH ACT 1970 S37

HEALTH ACT 1970 S34

WILKEN WILKEN & VILLIERS: THE LAW OF WAIVER VARIATION & ESTOPPEL 2ED 2002 PARA 9.2

OAKLAND METAL CO LTD v D BENAIM & CO LTD 1953 2 QB 261 1953 3 WLR 475 1953 2 AER 650

FINNEGAN v RICHARDS & MADIGAN (ATTORNEYS OF ALLEN) 2007 3 IR 671 2007 2 ILRM 487 2007/23/4783 2007 IEHC 134

MURPHY v GREALISH UNREP MACMENAMIN 11.1.2006 2006/41/8776 2006 IEHC 22

RYAN v CONNOLLY 2001 1 IR 627 2001 2 ILRM 174 2001/21/5755

DORAN v THOMAS THOMPSON & SONS LTD 1978 IR 223 1979 113 ILTR 93

NEGLIGENCE: Duty of care

Estoppel by representation - Principles to be applied - Claim in respect of incident - Representation by insurers that they would be dealing with action on behalf of defendant - Defendant not liable in tort - Application to dismiss action - Whether defendant estopped by representation from denying liability - Donegan v Minister for Education [2007] IEHC 119, (Unrep, O'Neill, 16/3/2007); Oakland Metal Co Ld v D Benaim & Co Ld, [1953] 2 QB 261; Finnegan v Richards [2007] IEHC 134, (Unrep, McKechnie J, 20/4/2007); Murphy v Grealish [2006] IEHC 22, (Unrep, MacMenamin J, 11/1/2006) approved - Ryan v Connolly [2001] 1 IR 627; Doran v Thompson Ltd [1978] IR 223 applied - Health Act 1970 (No 1), ss 34 and 37 - Action dismissed (2004/2102P - Hedigan J - 29/3/2011) [2011] IEHC 124

Cunningham v HSE

Facts The first named defendant sought by way of notice of motion an order dismissing the plaintiff's claim as disclosing no cause of action against it. The plaintiff claimed damages in respect of sexual assault/abuse sustained whilst he was a patient in Monaghan General Hospital in or about 1963. The assailant was a porter in that hospital and was charge and convicted in respect of this incident. The plaintiff's solicitors notified the hospital in writing of the plaintiff's claim and received a reply from the Irish Public Bodies Mutual Insurance Co. Ltd. (IPB) on 26 August 2003, acknowledging the plaintiff's letter and advising that they would be dealing with the matter for the North Eastern Health Board. The defendant pleaded in its defence that no cause of action lay against it as it had no liability in tort for the hospital. The plaintiff agreed that tortious liability was never transferred to the defendant but relied herein upon an estoppel raised by the defendant's letter of acknowledgment of the 26 August 2003. However, in an affidavit supporting the plaintiff's application to join the second named defendant as a co-defendant herein it was stated that proceedings were initiated against the first named defendant because it was considered that tortious liability had been transferred to it for the actions of the hospital by virtue of s. 37(5) of the Health Act 1970.

Held by Hedigan J. in allowing the application to dismiss: That estoppel was not to be lightly inferred. In the circumstances of this case there was no deliberate misleading by the defendant. The IPB wrote the standard acknowledgment letter in response to the plaintiff's letter notifying it of a claim against it. It no doubt was at least partly responsible for leading the solicitors, until the defence was filed, to assume they had identified the correct defendant. However, the evidence adduced on behalf of the plaintiff established that his solicitors considered the Health Act and incorrectly concluded that it had transferred liability in tort from the hospital to the first named defendant. That evidence strongly suggested that the plaintiff's solicitors did not in fact rely solely upon the IPB letter. Furthermore, the representation made was not a clear and unequivocal one. No tortious liability existed on the part of the first named defendant and in the circumstances of this case no satisfactory grounds to raise an estoppel by representation were sustained. Consequently, the claim against the first defendant was dismissed.

Reporter: L.O'S.

1 1. The plaintiff claims damages in respect of sexual assault/abuse sustained whilst he was a patient in Monaghan General Hospital (MGH) in or about 1963. His assailant/abuser was a porter in the Hospital and was charged and convicted in respect of the incident.

2 2. The plaintiff's solicitors wrote to MGH on 29 ^th July, 2003 notifying them of the plaintiff's claim. It was phrased in the manner usual to notify an intended defendant and advising it to pass the letter on to their insurers.

3 3. The Irish Public Bodies Mutual Insurance Co. Ltd. (IPB) replied on 26 ^th August, 2003 acknowledging the plaintiff's letter and informing that they would be dealing with the matter for the North Eastern Health Board (NEHB). The letter stated that their inquiries were commencing and they would be in contact with regard to nominating a solicitor. These letters are apparently the only pre-commencement correspondence between the parties.

4 4. Solicitors were nominated and the plaintiff's solicitors issued a plenary summons on 19 ^th February, 2004 naming the NEHB as defendant. An appearance was entered on 1 ^st April, 2004. A statement of claim was delivered on 2 ^nd April, 2004. Further particulars of negligence were served on 28 ^th June, 2005. A notice of motion was served returnable for 24 ^th July, 2006 for judgment in default of defence. On that day three weeks was allowed and on 10 ^th August, 2006 the defence was delivered. At paragraphs 1 and 2 of that defence, the defendant pleads that no cause of action lies against it because it has no liability in tort for MGH. A letter of request for voluntary discovery dated 20 ^th November, 2006 was served by the plaintiff. At page 2 thereof it sought details of the ownership, management and control of MGH which they raised because of the defence pleaded at paragraphs 1 and 2. The defendant by letter of 14 ^th June, 2007 informed the plaintiff of the case of Donegan v. Minister for Education which essentially confirmed the defence they had pleaded at paragraphs 1 and 2 to the effect that no tortious liability was ever transferred to them. No further action occurred in the case for nineteen months until notice of change of name of solicitor was furnished on 14 ^th January, 2009 together with a notice of intention to proceed.

5 5. The defendant on 14 ^th July, 2009 served a notice of...