Hewitt v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 28 June 2016
• Neutral Citation: [2016] IECA 194
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 1306 of 2014],[2014 1306] [Article 64 Transfer]
• Date: 28 June 2016

Irvine J.

Hogan J.

Mahon J.

BETWEEN

JOSEPH HEWITT AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF DOLORES HEWITT (DECEASED)

PLAINTIFF/RESPONDENT

- AND -

THE HEALTH SERVICE EXECUTIVE

DEFENDANT/APPELLANT

[2016] IECA 194

[2014 1306]

[Article 64 Transfer]

THE COURT OF APPEAL

Negligence – Wrongful death – Statute-barred – Appellant seeking to have the respondent?s claim statute-barred – Whether respondent was entitled to maintain the proceedings

Facts: The respondent, Mr Hewitt, was the husband and personal representative in the estate of his late wife. Ms Hewitt died from cancer on 23rd June 2010. By a personal injuries summons dated 25th January, 2012, Mr Hewitt issued proceedings pursuant to s. 7 of the Civil Liability Act 1961 and proceedings on behalf of himself and the other statutory dependants of the deceased for wrongful death pursuant to s. 48 of the 1961 Act. In the High Court it was agreed that the issue as to whether the respondent?s action was statute barred would be determined as a preliminary issue. The parties agreed that the deceased had sufficient knowledge of the wrongful act of the appellant, the Health Service Executive (HSE), for the purpose of s. 6(1) of the Statute of Limitations (Amendment) Act 1991 in July 2007 so that, accordingly, the two year statutory limitation period expired in July 2009. Critically, however, no action for personal injuries was commenced by the deceased in her own personal capacity prior to her death. On 4th June 2014, the High Court (Baker J) held that the claim brought by the respondent on 25th January 2012 pursuant to s. 48 following the death of his wife was not statute-barred ([2014] IEHC 300). The HSE appealed to the Court of Appeal against that decision, contending that as any action for negligence which might have been brought by the respondent?s wife on that date had she been alive would itself have been statute-barred, it must follow that the action brought by the respondent is also statute-barred. For his part, Mr Hewitt contended that the claim brought under s. 48 must be regarded as a stand-alone claim and that once the proceedings were brought within the two year statutory period from the date of his wife?s death, as they were, then the proceedings could not be regarded as statute-barred.

Held by Hogan J that he disagreed with the conclusions of Baker J on this point of statutory interpretation; while he fully agreed with her that the cause of action under s. 48 was a separate cause of action which was different from that which might have been maintained by the respondent?s late wife immediately prior to her death, this could not take from the fact that the two causes of action were nonetheless inter-linked. Hogan J held that it was clear from the language of s. 48(1) that the right to recover under s. 48 is dependent on showing that the deceased could have, but for death, successfully maintained that action and recovered damages in respect thereof. Hogan J held that those conditions were simply not satisfied where the underlying cause of action was itself statute-barred immediately prior to the death of the deceased. Hogan J held that if that underlying action which the late Ms Hewitt might have brought was itself statute-barred (or, for that matter, as in?Mahon v Burke [1991] 2 IR 495, compromised), the personal representative of the deceased cannot maintain the s. 48 proceedings, even if the proceedings were brought within time. Hogan J held that any other conclusion would mean, in effect, that a cause of action which was statute-barred during the deceased?s lifetime would?de facto?be revived through the mechanism of a s. 48 claim, even if allowance is made for the fact that the s. 48 claim is a separate cause of action.

Hogan J held that the Court must allow the appeal and hold that the respondent was not entitled to maintain the s. 48 proceedings.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 28th day of June 2016

1 This is an appeal brought by the Health Service Executive (?HSE?) against the decision of the High Court of 4th June 2014: see Hewitt v. Health Service Executive [2014] IEHC 300. In a very careful and thoughtful judgment Baker J. held that the fatal claim brought by the plaintiff on 25th January 2012 pursuant to s. 48 of the Civil Liability Act 1961 (?the 1961 Act?) following the death of his late wife, Ms. Dolores Hewitt, was not statute-barred. Ms. Hewitt sadly died from cancer on 23rd June 2010.

2 The HSE have now appealed this decision, contending that as any action for negligence which might have been brought by the plaintiff's wife on that date had she been alive would itself have been statute-barred, it must follow that the action brought by the plaintiff husband is also statute-barred. For his part, Mr. Hewitt (?the plaintiff?) contends that the fatal claim brought under s. 48 of the 1961 Act must be regarded as a stand alone claim and that once these proceedings were brought within the two year statutory period from the date of his wife's death (as they were), then the proceedings cannot be regarded as statute-barred.

3 This appeal clearly presents a novel and difficult point of statutory interpretation which is of considerable importance. It is, however, necessary first to set out the background facts.

4 The plaintiff respondent, Mr. Hewitt, is the husband and personal representative in the estate of his late wife, Ms. Dolores Hewitt. By a personal injuries summons dated 25th January, 2012, Mr. Hewitt issued proceedings pursuant to s. 7 of the 1961 Act and proceedings on behalf of himself and the other statutory dependants of the deceased for wrongful death pursuant to s. 48 of 1961 Act. In the High Court it appears to have been agreed that the issue as to whether the plaintiff's action is statute barred would be determined as a preliminary issue.

5 In her judgment Baker J. set out the sad turn of events as follows:

?The deceased had a history of breast cancer and was treated in 2001 at Our Lady's Hospital, Navan following which she made a full recovery. For monitoring purposes, she was required to attend at the hospital for review. She attended for radiological review in February 2007, when an ultrasound disclosed the existence of two lesions in her liver. Due to inadvertence on the part of the hospital no action was taken on foot of this report until a chance meeting with her surgeon five months later led to further scans which revealed further lesions in her liver. The deceased was treated for her secondary cancer, but sadly, eventually died from the cancer on 23rd June 2010.?

6 In the High Court the parties agreed that the deceased had sufficient knowledge of the wrongful act of the defendant for the purpose of s. 6(1) of the Statute of Limitations (Amendment) Act 1991 (?the 1991 Act?) in July 2007 so that, accordingly, the two year statutory limitation period expired in July 2009. Critically, however, no action for personal injuries was commenced by the deceased in her own personal capacity prior to her death.

The claim under s. 7 of the 1961 Act

7 In her judgment Baker J. dealt first with the claim brought under s. 7 of the 1961 Act. In that context it was not disputed that for two years after she discovered the failure of the hospital in July 2007 to act on the radiological review the deceased would have had a cause of action for personal injuries arising from the delay of five months in acting upon the abnormal ultrasound. No proceedings were admittedly instituted. Of course, had such proceedings been instituted by the deceased, they could have been continued by the husband qua personal representative after the death of the deceased pursuant to s. 7 of the 1961 Act. The relevant provisions are:

?(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.

(2) Where, by virtue of subsection (1) of this section, 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.

(3) Where:-

(a) a cause of action survives by virtue of subsection (1) of this section for the benefit of the estate of a deceased person, and

(b) the death of such person has been caused by the circumstances which gave rise to such cause of action,

the damages recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(4) The rights conferred by this section for the benefit of the estate of a deceased person are in addition to the rights conferred on the dependants of deceased persons by Part III of the Act of 1936 and Part IV of this Act.?

8 As Baker J. explained in her judgment, it is clear that the effect of s. 7 of the 1961 Act is to enable:

???the personal representative of a deceased to continue an action already commenced by a deceased prior to his or her death. In that case, the personal representative will apply for an order substituting the personal representative as plaintiff in place of the deceased in the action already commenced. Section 7 also allows for the commencement by the personal representative of an action vested in the deceased at the date of death. Section 7(3) limits the class of damages which may be recovered by the personal representative on behalf of the estate and damages are to be calculated without any loss or gain to the estate consequent on death, except that a sum in respect of funeral expenses may be included. There is...