Farrell v Ryan
| Jurisdiction | Ireland |
| Judge | O'Donnell J.,McKechnie J.,Dunne J. |
| Judgment Date | 17 February 2017 |
| Neutral Citation | [2017] IESCDET 20 |
| Court | Supreme Court |
| Date | 17 February 2017 |
[2017] IESCDET 20
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
Dunne J.
This determination relates to an application for leave to appeal to the Supreme Court from two judgments of the Court of Appeal (Peart J., Irvine and Hanna JJ.) delivered on the 14th October, 2016, and the 6th December, 2016, respectively, and from the resulting Order of that Court made on the 6th December, 2016, and perfected on the 7th December, 2016.
Linda Farrell, referred to as ‘the plaintiff’ or ‘the applicant’, seeks leave to appeal to this Court from the said judgments and Order of the Court of Appeal.
John Ryan, who is sued as representative of the Coombe Women & Infants University Hospital, opposes the application for leave to appeal, and is referred to in this Determination as ‘the defendant’ or ‘the respondent’.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° of the Constitution and many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.
Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The plaintiff instituted proceedings on the 6th September, 2012, claiming damages for personal injuries, loss and damage as a result of having undergone a symphysiotomy at the Coombe Hospital on the 25th September, 1963. Her claim was ultimately reformulated and reduced to a single plea of negligence, namely, ‘[t]hat there was no justification whatever, in any circumstances, for the performance of an antenatal symphysiotomy on the plaintiff at the time it was performed.’
Following a 15-day trial in the High Court, Cross J. delivered judgment on the 1st May, 2015 ( [2015] I.E.H.C. 275). The learned judge found, and it is not disputed, that a symphysiotomy was performed on the plaintiff in the Coombe Hospital on the 25th September, 1963, twelve days prior to the onset of labour and delivery of her first child by mid-cavity forceps extraction due to a failure to advance. As part of his judgment, Cross J. held that there was no prejudice to the hospital arising from the delay between the events complained of and the trial, as the case on liability was confined to the single plea of negligence. He further found that the plaintiff's claim was not statute-barred, and was satisfied that her date of knowledge for the purposes of the Statute of Limitations was August, 2011, when she received her medical records from the hospital. He also made findings as to the physical and mental health difficulties and lifetime distress suffered by the plaintiff, and her difficulty bonding with her infant. However, Cross J. held that the plaintiff had not proved her case against the hospital and, accordingly, that her claim for damages for personal injury must fail.
The plaintiff's application for an appeal directly to this Court, which was not opposed by the defendant, was declined ( [2015] IESCDET 48). The plaintiff appealed to the Court of Appeal; the defendant cross-appealed on the Statute of Limitations point. The appeal and cross-appeal were heard by the Court of Appeal (Peart, Irvine and Hanna JJ.) over three days (the 12th - 14th April, 2016). On the 14th October, 2016, the Court of Appeal dismissed the plaintiff's appeal and allowed the defendant's cross-appeal ( [2016] I.E.C.A. 281).
The Court of Appeal found that there was credible evidence to support the conclusion of the High Court that the plaintiff had failed to establish that her antenatal (prophylactic) symphysiotomy could never, in any circumstances, have been justified. The High Court was entitled to conclude that a reasonable and respectable body of clinicians of like expertise to that of the obstetrician who carried out the plaintiff's symphysiotomy would have approved of the use of that practice in the circumstances of her case in 1963. The practice was not one which, judged by the then prevailing standards, could be considered to be inherently defective within the meaning of the principles in Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91 (‘ Dunne’). On the cross-appeal, the Court of Appeal held that the High Court had erred in concluding that the plaintiff did not have sufficient knowledge under the Statute of Limitations until she received her medical records in August, 2011; she in fact had sufficient knowledge as of the 18th February 2010, which was to be taken as the date on which time began to run.
On the 6th December, 2016, the Court of Appeal awarded the costs of the appeal and the cross-appeal against the plaintiff, declining to depart from the general rule that costs follow the event. The final Order of the Court of Appeal was perfected on the 7th December, 2016.
The applicant seeks leave to appeal against the said judgments and Order of the Court of Appeal. The applicant's reasons in support of this application for leave to appeal are set out in detail in her Application for Leave and Notice of Appeal document. The respondent's reasons for opposing the granting of leave are likewise set out in his replying document. These documents are available with this determination on the Courts Service website; accordingly, the parties' reasons are set out here in summary form only.
Application for Leave and Notice of Appeal
The applicant submits that the judgments and Order of the Court of Appeal involve a matter of general public importance and that it is in the interests of justice that there be an appeal to this Court. As regards general public importance, it is submitted that the claim in this case is brought in the context of the practice of symphysiotomy, performed on some 1,500 women in Ireland between the 1940s and 1980s. This ‘deeply controversial’ practice has been the subject of three Government reports, UN condemnation, and intense media interest and public/Dáil debate.
The applicant submits that issues of general public importance arise out of the judgment of the Court of Appeal in relation to the second and third ‘prongs’ of the test for medical negligence outlined in Dunne. It is submitted that whether a ‘general and approved practice’ in determining the standard of care in medical negligence cases is to be assessed by reference to local conditions as distinct from international medical practice, and whether there is a ‘heavy’ onus...
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