Gallagher v Letterkenny General Hospital

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 30 March 2017
• Neutral Citation: [2017] IEHC 212
• Court: High Court
• Docket Number: [2007 No. 2543 P]
• Date: 30 March 2017

[2017] IEHC 212

THE HIGH COURT

Baker J.

[2007 No. 2543 P]

BETWEEN

PAUL GALLAGHER

PLAINTIFF

AND

LETTERKENNY GENERAL HOSPITAL, HEALTH SERVICE EXECUTIVE NORTHWEST AREA, THE MINISTER FOR HEALTH,

AND

ALISTAIR MCFARLANE

DEFENDANTS

Tort – Medical negligence – Service of personal injury summons – Delay – Inordinate and inexcusable – Personal circumstances of the victim – Conduct of the defendant – S. 10 of the Civil Liability and Courts Act 2004

Facts: The plaintiff had instituted a claim for professional negligence against the defendants owing to the lack of care in the mismanagement of the birth of the plaintiff. The first and second defendants had now filed an application seeking order for the dismissal of the plaintiff's claim on account of the delay. The plaintiff who suffered from cerebral palsy and was physically disabled claimed that there was delay on the part of the first and second defendants who had not yet filed their defence.

Ms. Justice Baker refused to dismiss the plaintiff's claim. The Court adjourned the present application for a period of three months to allow the plaintiff to collect expert evidence and furnish full particulars in relation to the alleged nature of the injury and the negligence, subject to the agreement by the first and second defendants for a modular trial for the particulars of the loss. The Court held that there had been an inexcusable delay on the part of the plaintiff who had not even served the personal injuries summons as mandated under s. 10 of the Civil Liability and Courts Act 2004. The Court held that notwithstanding the impecuniosity of the plaintiff or his solicitor, the plaintiff must prove his case and comply with the relevant rules. The Court, however, held that the personal circumstances of the plaintiff would cause the Court to weigh the balance in his favour as no serious prejudice would be caused to the first and second defendants. The Court found that despite the availability of the documents surrounding the plaintiff's birth, the named defendants did not act expeditiously and promptly, and thus, contributed to the delay.

JUDGMENT of Ms. Justice Baker delivered on the 30th day of March, 2017.

1 The plaintiff was born on 12th December, 1986. He suffered a catastrophic injury immediately before, or at, birth as a result of which he is profoundly physically disabled and suffers from cerebral palsy. He cannot speak or walk and is wholly dependent on his parents. He is said to be of average intelligence. His mother was a very young woman at the time of giving birth.

2 Proceedings by way of personal injury summons issued on 29th March, 2007, a day before the expiration of the statutory period provided for the commencement of such litigation under the Statute of Limitations Act, 1957 (as amended).

3 This judgment is given in a motion to dismiss the proceedings brought by the first and second defendants. The plaintiff served a notice of discontinuance in respect of the claim against the third defendant on 7th December, 2009. The notice incorrectly made reference to the first defendant.

4 The motion issued on 16th July, 2014 and concluded on 1st February, 2017. The delay in the hearing of the motion is a matter that will be explained and considered more fully below.

5 Some argument was made in the course of submissions that I should treat the present motion as one by the fourth named defendant to dismiss the action, but as no affidavit has been made on his behalf, I declined to do so.

6 The application to dismiss is made in the inherent jurisdiction of the court in reliance on the principles explained in Primor plc v. Stokes Kennedy Crowley & Anor. [1996] 2 I.R 459 (‘ Primor’), and the associated but different test explained in O'Domhnaill v. Merrick [1984] 1 I.R. 151.

The course of the pleadings

7 The personal injury summons issued on 29th March, 2007 and was served on the first and second defendants on 25th and 27th March, 2008 respectively, and on the fourth defendant at or near that time. It seems not to have been served on the third defendant against whom the action has been discontinued.

8 An appearance was entered more than twenty months later, on behalf of the first and second defendants, on 26th November, 2009, and on behalf of the fourth defendant on 11th December, 2009.

9 A notice for particulars was served by the first and second defendants on 5th October, 2010 and replies sent on 10th October, 2014, four years later. The motion to dismiss had already been issued and served at that time.

10 A notice for particulars of the fourth defendant was served on 10th June, 2010 and replies thereto on 4th February, 2011.

11 The fourth defendant served a defence on 17th August, 2012 in which he pleaded that the matter had not been prosecuted with due expedition and that this defendant was thereby compromised in his ability to defend the claim. The fourth defendant had retired from his professional practice by the date of the delivery of the defence.

12 The first and second defendants have not served a defence, but a draft defence containing objection that the plaintiff had been guilty of inordinate and unconscionable delay was delivered by them late in 2015 in the course of mediation, and by way of a statement of the grounds of defence on which those defendants would rely.

13 The motion the subject matter of the present application was first listed in the common law motion list on 13th October, 2014 and after a number of adjournments was transferred to the non jury list to fix dates on 12th October, 2015. It then appeared in two directions lists at which the plaintiff was not represented. The motion was listed for hearing on 11th October, 2016 and adjourned on a peremptory basis against the plaintiff to 26th January, 2017. It was heard by me on that date and adjourned then to enable further submissions by the plaintiff to 1st February, 2017 on which date it concluded.

14 In the context of the argument regarding delay, it should be noted that while the plaintiff was directed on 21st October, 2015 to file a replying affidavit to the motion within four weeks, that affidavit was not sworn until 24th January, 2017 just two days before the hearing date of 26th January, 2017, and fifteen months after the order.

15 On 13th October, 2014, and again on 13th April, 2015 the motion was adjourned to enable the parties to explore the possibility of mediation.

16 Mediation with the first and second defendants formally commenced on 25th September, 2015 and was adjourned on four occasions and finally abandoned by these defendants on 20th January, 2016.

17 It is agreed that the time during which the parties were engaged in, and exploring, mediation would not be taken into account in determining the period of delay. Therefore, in round terms the period between 13th October, 2014 and 20th January, 2016 may be ignored.

The Primor test

18 The relevant period of delay for the purpose of the Primor test is that between the issue of the summons on 29th March, 2007 and the agreement to enter mediation in October, 2014, a period of approximately seven years. The period in bringing the present motion on for hearing after mediation concluded in January, 2016 must to an extent also be reckoned, and that accounts for a further delay of one year.

19 The defendants proceeded at a relatively leisurely pace in the early days following the service of the personal injury summons. An unusual aspect of the present case is that a defence was filed by the fourth defendant on 17th August, 2012, but no defence was formally served by the first and second defendants at any time, and the plaintiff replied to a notice for particulars raised by the fourth defendant within a few months of receiving that notice.

20 A motion issued on 20th May, 2013 that the plaintiff do reply to the notice for particulars served almost three years before, and the replies were served on 10th October, 2014 far outside the six week period granted by Cross J. on 1st July, 2013. The first and second defendants served a warning letter on 3rd October, 2013 with regard to that failure but did not proceed to seek relief by motion thereafter.

21 Taken alone, and in conjunction with the periods of time that it took these defendants to serve pleadings and act on warning letters, the individual delays of the plaintiff while they are of some note, are not at a level where they could in a general way not be excused by reason of the complexity of the litigation. This is a claim in professional negligence in respect of the management of the birth of the plaintiff, and one which of its nature is complex and requires expert evidence and assessment. A long period in serving pleadings is often capable of being excused in complex litigation.

22 A professional negligence claim of complexity could readily take five to seven years to come on for hearing when one takes into account matters such as discovery, and in the case of a personal injuries claim, the furnishing of a schedule of witnesses, examination of a plaintiff by experts on behalf of the defendants, and in some cases the requirement to fully particularise special damages and further loss. But for reasons I now examine, the course of the present proceedings has been less than conventional.

The form of the pleadings

23 The personal injuries summons is short and somewhat formulaic and seeks damages for personal injuries, loss and damage arising from alleged negligence and lack of care in the management of the birth of the plaintiff. The first defendant is sued as the hospital in which the plaintiff was born and the second defendant as the proprietor or body in control or charge of that hospital.

24 The particulars of negligence and breach of duty are stated in the most general terms, and 26 particulars are given, one of which is a plea in...