Devlin & anor -v- The National Maternity Hospital, [2007] IESC 50 (2007)

Docket Number:346/2004 & 352/2004
Party Name:Devlin & anor, The National Maternity Hospital
Judge:Denham J.


[S.C. No: 346 of 2004]

[S.C. No: 352 of 2004]

Murray C.J.

Denham J.

Finnegan J.


Bridget Devlin and Terence Devlin



The National Maternity Hospital


Judgment delivered the 14th day of November, 2007 by Denham J.

  1. This case arises in the tragic circumstances of the death of a child. The issues relate to a post-mortem, the retention of organs, and nervous shock.

  2. This is an appeal from the dismissal by the High Court of the plaintiffs' claim for damages arising from the negligence, breach of duty, including breach of statutory duty, and/or breach of contract, on the part of the National Maternity Hospital, its servants or agents (hereinafter referred to as 'the hospital'), by reason of which it was claimed that the plaintiffs sustained serious personal injuries, loss, damage, and/or expense.

  3. Counsel on behalf of the hospital applied, on the sixth day of the hearing of the case, for a non-suit, indicating that if it were unsuccessful he would go into evidence. The learned trial judge permitted the application, and having heard the submissions, acceded to the application. Judgment was given on the 1st July, 2004, when both actions were dismissed.

  4. An appeal was filed on behalf of the plaintiffs. The Notice of Appeal sets out five grounds of appeal, being that the learned High Court judge:-(i) Erred in law in his application of the principles set out in Kelly v. Hennessy [1995] 3 I.R. 253, as recited in Fletcher v. The Commissioner of Public Works, [2003] 2 I.L.R.M. 94 in holding that in order to recover compensation the plaintiffs had to suffer a physical or apprehension of a physical injury. Further and/or alternatively he erred in law in applying the principle of Kelly v. Hennessy in this case. (ii) Erred in law in holding that in order to recover damages for nervous shock and/or a psychiatric injury the plaintiffs had to have suffered and sustained a physical or apprehension of a physical injury. (iii) Erred in law and in fact, in light of the plaintiffs' then state of knowledge, in finding that the plaintiffs' claim against the hospital for the unauthorised carrying out of a port-mortem and the complaints and injuries arising therefrom was statute barred. (iv) Erred in fact and in law in not distinguishing between having knowledge a post-mortem had taken place and not knowing the infant's organs had been removed and retained. (v) Erred in law and in fact in acceding to the hospital's application for a direction.

  5. In addition, the hospital has filed a notice to vary the judgment and order of the High Court. The three grounds in the notice to vary are as follows:- (i) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in not imputing to the plaintiffs and each of them by virtue of the operation of the provisions of s. 2 (2) of the Statute of Limitations (Amendment) Act, 1991 the knowledge that the plaintiffs expert, Dr. Barson, Consultant Pathologist, had, that organs and tissue had been retained when the expert furnished his report, dated the 23rd day of August, 1991 (and supporting documentation) to the plaintiffs solicitors which clearly demonstrated and/or indicated that organs and tissue had been removed and retained from the plaintiffs' stillborn infant, Laura. (ii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in finding that for the purposes of the operation of the Statute of Limitations Acts, 1957 - 1991 that time only commenced to run against the plaintiffs' on receipt of the letter from the hospital dated 24th March, 2000. (iii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in failing to hold that the plaintiffs did not establish any personal injury loss and damage arising out of the alleged negligence and breach of duty on the part of the hospital where the first named plaintiff gave evidence to the effect that even if consent had been obtained for the post-mortem the letter dated 24th March, 2000, could have caused same and/or similar personal injury, loss and damage as was allegedly caused by the alleged lack of consent.

  6. Direction

    Although it is the last ground of appeal, I will consider it first. It was submitted that the High Court erred in acceding to the hospital's application for a direction.

  7. On the application for a direction the High Court applied a test, that is whether, treating the plaintiffs' case at its highest, the Court would be entitled to arrive at the conclusion that the hospital had a case to meet. The High Court held that it must assume the truth of all factual evidence given on behalf of the plaintiffs, referring to O'Donovan v. Southern Health Board [2001] 3 IR 385. This it then did.

  8. The learned High Court judge assumed the following matters: "… for the purpose of this application I must assume, as I do, firstly that the plaintiffs did not give their consent to a post-mortem examination being carried out on their deceased daughter; secondly, that the plaintiffs did not know that in the course of that post-mortem examination organs would be removed from the deceased and retained by the defendants; thirdly, that the plaintiffs did not actually learn of the fact that the organs had been retained until they received a letter on that behalf dated 24th March, 2000, from Dr. Declan Keane, then Master of the defendant's hospital; and fourthly, that on learning that the organs of her deceased daughter had been retained by the defendants the first named plaintiff, Bridget Devlin, suffered shock and post-traumatic stress."

  9. I am satisfied that on the application for a direction the High Court applied the correct principles of law. The High Court assumed the truth of the evidence given on behalf of the plaintiffs, and determined the application on that basis. This is the correct approach, and there was no error made in this regard by the learned High Court judge. Consequently, I would dismiss the appeal insofar as it is grounded on the basis of a claim of error of the High Court in acceding to the hospital's application for a direction.

  10. Single Appellant

    In considering this appeal, I do so on the basis that it is an appeal by Mrs Bridget Devlin, and not by Mr Terence Devlin. In the High Court counsel for the hospital submitted that, irrespective of how the Court determined the issue of liability between the parties, no cause of action was established on the part of Mr Terence Devlin, in that there was no evidence that he had suffered an injury or damage as a result of the matters in issue. The High Court held:-"Not only was there no medical evidence to suggest that Mr Devlin suffered an injury as a result of the matters complained of but he himself in the course of his evidence did not say one word which suggested that he personally had suffered an injury. He had a lot to say about how his wife had suffered but nothing about himself. In this regard, I reject the suggestion by Mr McCartan Senior Counsel on his behalf that I should infer from the evidence which I heard that Mr Devlin had suffered distress, as Mr McCartan suggested that Peart J. had approved of in the course of an unreported judgment which he delivered on 11 March of this year in the case of Philip -v- Ryan and the Bon Secours Hospital. In my view, I cannot manufacture evidence which is not there. Accordingly, I am satisfied that Mr Devlin has not proved any injury or loss as a result of the matters of which he complains; therefore, even if he were to succeed on the liability issue it would be a case of damnum absque injuria. Accordingly, I will accede to Mr Meenan's application to non-suit Mr Devlin."

  11. These were findings of fact by the High Court. Given the jurisprudence of this Court, for example as stated in Hay v. O'Grady [1992] 1 I.R. 210, I would not interfere in these findings. While no specific grounds of appeal would appear to expressly relate to the issue of Mr Terence Devlin's appeal, if and insofar as any appeal was lodged on his behalf, I would dismiss it, affirming the decision of the High Court.

  12. Statute Barred

    I shall consider next the issue as to whether the claim is statute barred. The High Court dealt with this matter under two headings, and I will adopt the same approach. First, there is the submission of a lack of consent to the post-mortem examination; and secondly, the issue of the retention of organs.

  13. Post-mortem

    On the issue of the lack of consent for the post-mortem, the High Court held:-"Insofar as the [hospital] carried out the post-mortem examination without the...

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