Doyle v Dunne
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Malley |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] IESC 68 |
| Docket Number | [S.C. No. 39 of 2014],[Appeal No: 39/2014] [High Court Record No: 2011/5590 P] |
| Court | Supreme Court |
| Date | 17 November 2016 |
(AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRIDGET DOYLE, DECEASED)
[2016] IESC 68
[Appeal No: 39/2014]
[High Court Record No: 2011/5590 P]
THE SUPREME COURT
Practice & procedure – Tort – Cause of action – Medical negligence – S 7 Civil Liability Act 1961
Facts: The appellant had failed in a claim for medical negligence damages at the High Court. Whilst awaiting the hearing of the appeal before the Supreme Court, she passed away. The matter now came before the Supreme Court on a preliminary issue of whether the cause of action survived her death, and whether a related claim for care provided by her son also continued.
Held by Ms Justice O’Malley, the other Justices concurring, that the appeal would be dismissed. The Court was not concerned at this stage with the merits of the case before the High Court, but the procedural aspects of the cause of action. The Court was satisfied that s 7 of the Civil Liability Act 1961 had dealt with all vestiges of the common law rule on abatement. On that basis, the Court could not accept that delays by the judicial system had caused the current issue.
This judgment deals with a preliminary issue as to whether the plaintiff's cause of action for damages for alleged medical negligence survived her death. Unfortunately, the plaintiff passed away after the High Court hearing, at which she was unsuccessful, but before the conclusion of the hearing of her appeal before the Supreme Court. It is asserted that, by virtue of the relevant common law rules, her cause of action survives for the benefit of the estate notwithstanding the provisions of the Civil Liability Act 1961, as amended. It is also argued that, in any event, the proceedings include a claim for pecuniary loss in respect of care provided to the plaintiff by her son, Mr. Edward Doyle and that this claim survived her death.
At all material times the plaintiff lived in her family home with her son and his wife. The evidence was that Mr. Doyle acted as his mother's fulltime carer and that she had relied on him since suffering from a brain haemorrhage in 1996.
On the 27th January, 2010, at the age of seventy-nine years, the plaintiff underwent surgery to remove a cataract from her left eye. Unfortunately the surgery was not a success, and post-operative complications necessitated removal of that eye on the 3rd February, 2010, in order to prevent damage to her right eye. She was fitted with a prosthetic eye. Further complications arose, requiring further interventions later in 2010 and in 2012. Her daily life was affected in that her independence was reduced, she was often depressed and she was reliant on family members for care.
The proceedings alleging negligence and breach of duty were initiated by way of personal injury summons issued on the 21st June, 2011. It was not alleged that the operation had been carried out negligently and in essence the plaintiff's claim was that she had not given informed consent to the surgery and to the administration of a general anaesthetic. It was pleaded that she had been told that the surgery would only involve a 20 minute procedure, under local anaesthetic, as a day patient and that there was no risk attached to it. She would not have consented had she been made aware of the risks associated with the operation. It was alleged that she had signed the consent form in circumstances amounting to duress after she had been given medication and that she could not understand it.
No particulars of any financial loss were set out in the summons. A notice for particulars sent by the defendant, dated January 2012, requested confirmation that there was no claim for any items of special damage. In reply, the plaintiff's solicitor stated that she had a medical card and that no claim was being made in respect of medical expenses.
By letter dated 31st October, 2012, and headed ‘Further Particulars of Injuries’, the plaintiff's solicitor set out further details of the impact of her injury on her life. It was stated, inter alia, that she no longer cooked for herself. The letter contains the following paragraph upon which emphasis is now placed:
‘The Plaintiff's son has become her main carer. If he has to leave her for long periods, he ensures that a family member is present. Her judgment is poor due to her visual impairment i.e. she misplaces a cup when attempting to place it on a saucer. She spills liquids. She has burned her hands when putting fuel on the fire and also, when using the cooker. Therefore, she is not allowed to use the cooker or handle kettles of boiling water. Each morning the Plaintiff's eye socket is congealed with blood and yellow matter. Her son has to remove the eye, cleanse the socket, administer eye drops etc. He has to repeat this procedure two to three times per day depending on the level of discharge from the socket. He also administers her medication, cooks her meals and generally looks after her.’
The matter came on for hearing on the 12th December, 2012. This Court is not, for present purposes, concerned with merits of the case as it ran in the High Court. It is however necessary to refer to certain aspects.
The plaintiff herself was not called to give evidence until the third day of the hearing. It quickly became apparent that there was an issue as to her capacity. As an example, she was under the impression that the operation had taken place in Tullamore rather than in Dublin. The trial judge adjourned the hearing until the 21st December, when he directed that the matter should proceed on the basis that she was a person of unsound mind not so found. The title of the proceedings was amended and the plaintiff's son Mr. Doyle acted as the next friend. The hearing was then adjourned until the 26th March, 2013, when the defendant went into evidence. There was then a further adjournment for written and oral submissions and the hearing concluded on the 26th June, 2013.
It is also necessary to refer to a particular aspect of the evidence given by the plaintiff's son, Mr. Doyle. He described the care he gave in respect of his mother's prosthetic eye. He took it out twice a day, cleaned it and put it back. He also referred to the fact that it was too dangerous for her to make a cup of tea for herself, and said, in effect, that she had aged ten years as a consequence of what had happened to her.
The judgment of the High Court (De Valera J.) was delivered on the 20th December, 2013. It will suffice here to say that the trial judge held on the evidence that the requirements for disclosure of information to patients in elective surgery had been met. Though he sympathised with the plaintiff and with her son, and acknowledged the considerable impact on her life, he held that no liability could be attributed to the hospital. As a result the claim was dismissed.
The notice of appeal was lodged on 30th January, 2014, asking this court to set aside the judgment of the High Court and order a new trial on the issues in the High Court, or alternatively to enter judgment for the plaintiff and assess the damages.
On the 15th May, 2014, counsel applied in court for an early hearing date. The plaintiff was at that stage terminally ill with advanced pancreatic cancer, and the application for priority was based upon the opinion of her oncologist that she was unlikely to survive for a further two months and might not live that long. The appeal was therefore listed for hearing on the 3rd June, 2014. It was called on by counsel for one day but in the event did not conclude on the hearing date and was adjourned to the 31st July, 2014, for the completion of argument. Unfortunately the plaintiff passed away on the 11th July, 2014. On the date fixed for the resumption of the appeal, the Court was informed of this event.
There appears to have been an unfortunate misunderstanding as to what should happen next. The plaintiff's representatives appear to have understood that the appeal on the substantive issue should continue and that the issue of the consequences of the plaintiff's death would become relevant only if the Court decided to allow the appeal. The members of the Court appear to have had a different understanding, and on the 24th November, 2014, delivered a judgment in which the appeal was dismissed on the basis that because of the plaintiff's death, and since (as the court saw it) the claim had been for general damages only, there was nothing by way of remedy or relief left in the claim for the Court to adjudicate upon or remit to the High Court.
This judgment was set aside on foot of a motion brought on behalf of the plaintiff, in which it was complained that counsel had been specifically directed not to address the question whether the action survived. It is relevant, for the purposes of the current issue, to note that the case was made in support of the application that, apart from the contention that the claim for general damages survived, there was a claim in respect of care services provided by Edward Doyle.
The plaintiff's solicitor averred that before the High Court hearing he had obtained a report from a nursing consultant dealing with the valuation of those services, and that the paragraph in the letter of updated particulars quoted above came from that report. The nursing consultant valued the care services provided by Mr. Doyle between the 10th February, 2010, and the 25th May, 2012, at €89,902.40.
The solicitor deposed that it had been decided by senior counsel and himself not to call the author of the report, because the reality was that Mr....
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