Doyle v Dunne
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy |
| Judgment Date | 20 November 2014 |
| Neutral Citation | [2014] IESC 69 |
| Docket Number | [Appeal No. 039/2014] |
| Court | Supreme Court |
| Date | 20 November 2014 |
[2014] IESC 69
THE SUPREME COURT
Denham J., Murray J., Laffoy J.
[Appeal No. 039/2014]
Appeal heard in part - Status of appeal - Jurisdiction of the court - Cause of action - Personal injury - Alleged negligence, breach of contract and trespass to the person - Damages - Survival of causes of action on death - S.7 (2) Civil Liability Act 1961
Facts A personal injuries summons was issued in the High Court on 21st June 2011. The personal injury claim was initiated by Bridget Doyle against Daniel Dune, the agreed nominated defendant of the Royal Victoria Eye and Ear Hospital. The appellant entered the hospital as a patient on 27th January 2010. She underwent surgery to remove a cataract from her left eye under general anaesthetic on the advice of hospital staff. The surgery was not a success; infection followed leading to further surgical procedures. The appellant brought a claim in negligence and breach of contract against the respondent. She claimed she underwent surgery under general anaesthetic without any discussion of the risks associated with the procedure or the potential consequences of something going wrong. She claimed trespass to the person as she said the surgery was performed without her consent. However, no particulars of any pecuniary loss or damage she was alleged to have suffered were outlined in the indorsement of claim. The appellant was to give evidence on 14th December 2012 but concerns arose as to her capacity. On 21st December 2012 the trial judge ruled the matter should go ahead on the basis that the appellant was a person of unsound mind not so found – her son would sue on her behalf as her next friend. The judge considered the duty of medical practitioners obtaining consent from their patients. He referred to Walsh v. Family Planning Services [1992] 1 I.R. 496 when considering the minimum requirements for disclosure of information to patients in elective surgery and said the threshold had been met. He ruled on balance of probabilities the plaintiff would have gone ahead with the surgery had she known the risks involved. The respondent was found not liable and negligence was not established. On appeal, the appellant sought to set aside the judgment of the High Court and asked the Court to order a new trial. The appellant was terminally ill and later died. Her son was her sole executor. He sought an order pursuant to Order 58, rule 8 of the Rules of the Superior Courts 1986 and the Court”s inherent jurisdiction granting him leave to proceed with the appeal.
Held Survival of causes of action on death is governed by s.7 of Civil Liability Act 1961. Under section 7 (2), a cause of action survives for the benefit of the estate of a deceased person - the damages recoverable for the benefit of the estate of that person shall not include exemplary damages or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness. Thus, the damages sought by the appellant were excluded from recoverability by virtue of subsection 2. The judge said the appellant”s claim, whether founded on alleged negligence, breach of duty or trespass to the person, was in its entirety a claim for unliquidated general damages for pain, suffering and personal injury. He said there was no other component for remedy or relief in the appellant”s claim, whether for special damages or otherwise. In the circumstances, with regard to the s. 7(2) preclusion, the judge concluded there was nothing by way of remedy or relief left in the claim for the Court to adjudicate on or to remit to the High Court.
Accordingly, applying s. 7 of the Act of 1961, the appeal was dismissed.
The primary issue which the Court has to address on this appeal at this juncture arises from the unfortunate circumstance that the appellant died at a time when her appeal had been part heard by the Court. In consequence, the Court must now determine the status of the appeal and, in particular, whether the Court has any jurisdiction to adjudicate on the appeal having regard to the nature of the appellant”s cause of action and her claim against the respondent. In reaching a determination on the issue it will be necessary to consider in some detail the nature of the appellant”s cause of action and her claim as pleaded, the conduct of the proceedings and their outcome in the High Court and what occurred on the hearing of the appeal, before considering the relevant law and its application to the facts.
The proceedings in the High Court were initiated by a personal injuries summons which issued on 21st June, 2011. The indorsement of claim, which described the appellant as ‘a retired lady’ who was born on 11th July, 1931, disclosed that the respondent was being sued as ‘the agreed nominated defendant of the Royal Victoria Eye and Ear Hospital’ (the Hospital) in Dublin. The factual basis of the appellant”s claim for personal injuries against the Hospital, as outlined in the indorsement of claim on the summons, was that she entered the Hospital as a patient on 27th January, 2010 and underwent surgery to remove a cataract from her left eye under general anaesthetic on the same day on the advice of the Hospital”s servants or agents. The consequences of the surgery are outlined in the judgment of the High Court (de Valera J.) delivered on 20th December, 2013 as follows:
‘Unfortunately, the plaintiff”s surgery was not a success. An uncontrolled pseudomonas infection developed which necessitated surgical evisceration of the plaintiff”s left eye on 3rd February, 2010 in order to avoid causing permanent damage to her right eye. The plaintiff was subsequently fitted with a prosthesis. This had devastating consequences for the plaintiff and [her son, Edward Doyle] gave evidence of the considerable impact it had on her daily life. He told the Court that since surgery his mother is often very depressed . . . Complications also arose which led to the plaintiff having to undergo a dermisfat graft in April 2010 under general anaesthetic and another procedure was required in 2012 after the plaintiff”s eye socket began to bleed.’
In the indorsement of claim on the summons and in a notice of further particulars furnished on behalf of the appellant the allegations of negligence and breach of duty against the respondent were particularised comprehensively. In essence, the appellant”s case was that the respondent failed in its duty to obtain informed consent from her to the surgical procedure and to the administration of a general anaesthetic to her. The case advanced on behalf of the appellant was that she underwent the surgery under general anaesthetic without any discussion of the prospects of the success of the surgery, on the basis of which it was contended that she would not have undergone the surgery in the knowledge of the risks associated with it.
Apart from the allegations of negligence and breach of duty in the indorsement of claim, it was also alleged that ‘the said surgery and the said general anaesthesia was performed without the informed, or any, consent of the [appellant] and the [respondent], their servants or agents, thereby trespassed to the person of the [appellant]’.
While it was pleaded in the indorsement of claim that the appellant had sustained severe personal injuries and had suffered loss and damage by reason of the alleged wrongdoing of the respondent and that the plaintiff claimed damages for negligence, breach of duty and trespass to the person, no particulars whatsoever of any pecuniary loss or damage she was alleged to have suffered were outlined in the indorsement of claim. This point was raised in a notice for particulars served by the respondent”s solicitors in which they sought confirmation that the appellant was not making any claim for any items of special damage. The response of the appellant”s solicitors was as follows:
‘The [appellant] has a medical card. No claim is made in respect of medical expenses to date.’
No claim for special damage was subsequently made on behalf of the appellant and no evidence of special damage was adduced at the hearing in the High Court.
6. In the proceedings as initiated, the appellant sued in her own name. The action came on for hearing in the High Court on 12th December, 2012. On the first day of the trial, the appellant”s son, Edward Doyle (Mr. Doyle), gave evidence, as did an expert medical witness called on behalf of the appellant. The second day of the trial was taken up with further evidence of expert medical witnesses called on behalf of the appellant. On the third day of the trial, 14th December, 2012, the appellant was called to give evidence, but after a short time an issue arose as to her capacity. The trial judge heard submissions on behalf of the appellant and the respondent and then adjourned the hearing until 21st December, 2012. On 21st December, 2012, the trial judge decided that the matter should go ahead on the basis that the appellant was a person of unsound mind not so found. The title of the proceedings was accordingly amended so that the appellant was described as a person of unsound mind not so found suing by her son and next friend, Mr. Doyle. The matter was then adjourned and the hearing was resumed on 26th March, 2013, when two doctors who had attended the appellant in the Hospital testified on behalf of the respondent. The matter was further adjourned to enable the parties to exchange written submissions. Oral submissions were heard...
To continue reading
Request your trial