Dowd v Kerry County Council

JurisdictionIreland
Judgment Date10 July 1970
Date10 July 1970
Docket Number[1964. No. 1042 P.]
CourtSupreme Court
(S.C.)
Dowd
and
Kerry County Council

Delivery of statement of claim - Delay of four years - Application to dismiss action for want of prosecution - Appeal to Supreme Court - Additional evidence - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 27, r. 1; Or. 58, r. 8; Or. 108, rr. 7, 11.

On the 26th July, 1962, a surgical operation was performed on the plaintiff by the second defendant who was a surgeon employed by the first defendants in their county hospital. On the 1st June, 1964, the plaintiff commenced an action in the High Court and claimed damages for personal injuries which she alleged were caused by the negligence of the defendants or one of them. The plaintiff sought and obtained the consent of the defendants to an extension until the 31st October, 1964, of the period allowed for delivery of a statement of claim but no statement of claim was delivered during such extension or subsequently. From April, 1964, when he was retained, until May, 1965, the plaintiff's solicitor tried without success to obtain the permission of the defendants to interview nurses and to be supplied with copies of the medical records of the operation. No steps involving the defendants were taken by the plaintiff from May, 1965, to March, 1968, when the plaintiff's solicitor again sought to obtain such copy records. On the 12th November, 1968, the Master of the High Court made un order dismissing an application by the plaintiff for an extension of the period allowed for delivery of a statement of claim, and dismissing the plaintiff's claim against the second defendant for want of prosecution; that order was affirmed by the High Court on the 2nd December, 1968. The plaintiff appealed to the Supreme Court. In opposing the plaintiff's application in the High Court, the second defendant had made the point that during the operation he had been assisted by a surgical registrar who had left the country and...

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    ...I.D.A.DLRM [1993] ILRM 248; Department of Transport v. Chris Smaller (Transport) Ltd.ELR [1989] A.C. 1197; Dowd v. Kerry County CouncilIR [1970] I.R. 27; Eagil Trust Co. Ltd. v. Pigott-BrownUNK [1985] 3 All E.R. 119; Ó Dómhnaill v. MerrickIR [1984] I.R. 151; Rainsford v. Limerick Corporatio......
  • Sheehan v Amond
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    ...unanswerable. We have been referred to many of the relevant cases, e.g. Allen v. McAlpine 1968 2 Q.B. 229; Dowd v. Kerry Co. Council 1970 I.R. 27; O'Reilly v. C.I.E. 1973 I.R. 278; and Birkett v. James 1977 2 All E.R. 801. In none of those case, however, can any factor be found which cou......
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    ...94 that inspired the defendant into action. 95 I began by referring to the words of O'Dalaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27. Of course, the primary onus rests on the plaintiff in pursuing his or her proceedings, and more particularly so in defamation cases where any wa......
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