Gunning v National Maternity Hospital

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 11 November 2008
• Neutral Citation: [2008] IEHC 352
• Docket Number: [No. 7423 P/2007],[2007 No. 7423
• Court: High Court
• Date: 11 November 2008

Gunning v National Maternity Hospital & Eurosurgical Ltd & Anor

Maria Gunning

Plaintiff

And

National Maternity Hospital

And

Eurosurgical Limited

And

Richard Wolf Gmbh

Defendants

[2008] IEHC 352

[No. 7423 P/2007]

The High Court

PRACTICE AND PROCEDURE

Personal injuries assessment board

Authorisation - Medical or surgical procedure - Factual circumstances - Personal Injuries Assessment Board Act 2003 (No 46), s 3(d) - Defendant's motion to strike out refused (2007/7423P - O'Neill J 11/11/2008) [2008] IEHC 352

Gunning v National Maternity Hospital

Facts: During a procedure on the plaintiff, a forceps broke and lodged in her abdomen. The plaintiff instituted proceedings as a result. The defendant sought an order to strike out the proceedings as frivolous or vexatious or alternatively to be struck out for her failure to seek authorisation from the Personal Injures Assessment Board. The plaintiff applied for a declaration that the proceedings were excluded from the provisions of s. 3(d) of the Personal Injuries Assessment Board Act 2003, which excluded medical surgeries. The issue arose as to whether the claim could be classed as a defective product tortuous claim or a medical negligence claim.

Held by O’ Neill J. that the factual circumstances of the case clearly fell within the scope of s. 3(d) of the Act of 2003. The relief sought would be refused and the plaintiff was entitled to succeed.

Reporter: E.F.

RSC O.19 r28

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 PART II

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S46

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(d)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S17(1)(b)(ii)(I)

Judgment of

O'Neill J.

1 delivered the 11th day of November 2008 .

2 By its Notice of Motion dated 10^th June, 2008, the first named defendant seeks an Order pursuant to O. 19 r. 28 of the Rules of the Superior Courts, 1986 striking out these proceedings against it for the failure on the part of the plaintiff to disclose a reasonable cause of action or alternatively for being frivolous or vexatious or alternatively an order pursuant to the inherent jurisdiction of the High Court dismissing the plaintiff's action against it for failing to obtain an authorisation from the Personal Injuries Assessment Board (the P.I.A.B.) prior to the institution of these proceedings as required by Part 2 of the Personal Injuries Assessment Board Act, 2003 (the Act of 2003). In her Notice of Motion dated 16^th July, 2008, the plaintiff applied for a declaration that the proceedings are excluded from the provisions of the Act of 2003 and that the authorisation dated 28^th April, 2008, issued pursuant to s.46 of the Act of 2003, is null and void and of no application to the within proceedings.

3 On the 10^th October, 2005 the plaintiff was undergoing a laparoscopic right ovarian cystectomy at the first named defendant hospital. During the course of this surgical procedure a portion of a forceps broke and lodged in the plaintiff's abdomen. The procedure was converted into a laparotomy to retrieve the piece of metal. The plaintiff instituted proceedings in respect of the personal injuries she suffered as a result of this mishap against the first named defendant hospital, the second named defendant supplier and the third named defendant manufacturer on 9^th October, 2007. She also made an application to the P.I.A.B. on the same date, which accepted her application in respect of the second and third named respondents by letter of the same date. The letter contained the following paragraph in respect of the application regarding the first named respondent:

"Insofar as the first named respondent, National Maternity Hospital, is concerned, if it is the case that the claim arose out of the provision of any health service, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, as set out in section 3(d) of the PIAB Act 2003, then the Board does not consider that the claim is one that requires Ms Gunning to make an application to the Board for an Authorisation."

4 The central issue which falls to be determined is whether the applicant's claim against the first named respondent falls within the ambit of s.3 (d) of the Act of 2003, thereby obviating the need to obtain an authorisation under the Act of 2003 to institute court proceedings. The Act of 2003 provides as follows:

"3.-This Act applies to the following civil actions-"

a (a)……

b (b)……

c (c)……

5 (d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person)."

6 Counsel for the first named defendant, Mr. Meenan S.C., submitted that as the plaintiff failed to obtain an authorisation in respect of the first named defendant from the P.I.A.B. that she was precluded from instituting proceedings against it. He submitted that the plaintiffs claim was a defective product claim and not a medical negligence type claim. If he was right in saying that, he continued, the plaintiff would have been obliged to have sought and obtained an...