O'K v DK (Witness: immunity)

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy
• Judgment Date: 23 October 2001
• Neutral Citation: [2001] IESC 84
• Court: Supreme Court
• Docket Number: [S.C. No. 38 of 2001],38/01
• Date: 23 October 2001

[2001] IESC 84

THE SUPREME COURT

Murphy J

Murray J

Fennelly J

38/01

O'KEEFE v. KILCULLEN & ORS

Between:

Eileen O'Keefe

Plaintiff/Appellant

AND

Diarmuid Kilcullen, Martin Nolan, Patricia Casey,Erinville Hospital and the Southern Health Board

Defendants

Citations:

ENNIS V BUTTERLY 1996 1 IR 426

MARRINAN V VIBART 1962 1 AER 869

RONDEL V WORSLEY 1967 3 WLR 1666

SAIF ALI V SYDNEY MITCHELL 1978 3 AER 1033

EVANS V LONDON HOSPITAL MEDICAL COLLEGE 1981 1 AER 715

HALL V SIMONS 2000 3 AER 673

HAUGHEY, RE 1971 IR 217

LOONEY V BANK OF IRELAND 1996 1 IR 157

Synopsis:

PRACTICE AND PROCEDURE

Immunity from suit

Family law - Professional negligence - Medicine - Extent of immunity - Evidence given by court appointed witness - Privilege - Whether witness enjoyed immunity from suit in respect of evidence given (38/2001 - Supreme Court - 23/10/01) - [2001] 3 IR 568

O'Keeffe v Kilcullen

A decree of nullity had been granted in proceedings involving the plaintiff. The plaintiff issued proceedings seeking to recover damages against the third defendant, a psychiatrist, who had tendered psychiatric evidence in the matrimonial proceedings. The plaintiff alleged that the third defendant was negligent in failing to conduct a careful and thorough psychiatric examination and alleged that the third defendant in reaching her conclusions relied upon inaccurate and incorrect information. O'Sullivan J held that the evidence given was protected by absolute privilege and the case against the third defendant would be dismissed. On appeal Mr. Justice Murphy delivering judgment in the Supreme Court, nem. diss., held that the immunity from suit enjoyed by the third defendant derived from the impact of public policy on the administration of justice. The psychiatrist's evidence was dictated by the terms of reference of the High Court. The evidence was based upon her professional expertise and the investigations undertaken. These matters were open to examination and had been fully examined. Even if it could be shown that the psychiatrist was guilty of negligence the law in this jurisdiction conferred immunity upon a witness, whether expert or otherwise. This immunity was qualified somewhat in that if such a position was abused then that immunity would be forfeited. The appeal would be dismissed.

1 Mr Justice Francis D Murphydelivered the 23rd day of October,2001[nem diss]

2 This is a matter with a long and, at times, confused, history.

3 On the 12th July, 1983, the above named Eileen O'Keefe (then Bohane) married one Denis O'Keefe at Castlehaven, County Cork. In matrimonial proceedings entitled "The High Court 1986 No 5M between Denis O'Keefe Petitioner and Eileen O'Keefe Respondent" the Petitioner sought a decree of nullity on the grounds that the Respondent at the date of marriage suffered from a personality disorder of such a degree that she lacked the capacity to form and sustain a normal marital relationship with the Petitioner. By order dated the 15th day of October, 1986, the Master of the High Court determined the questions to be tried and ordered that Dr Patricia Casey, the above named Defendant and the Respondent to this appeal be and was thereby appointed to carry out a psychiatric examination of Mrs O'Keefe and report in writing to the Court thereon by registered post in a sealed envelope addressed totheMaster of the High Court. Dr Casey reported to the High Court on the 14th of January, 1987, and furnished an addendum to that report under cover of a letter dated the 29th day of January, 1987. The petition was at hearing in the High Court before Blayney J for six days in June of 1987. In the course of the hearing Dr Casey gave evidence and she was cross-examined at some length by Ms Mary Robinson, SC, Counsel on behalf of Mrs O'Keefe. Dr Casey was examined in relation to her opinion and the matters of fact on which it was based. In addition the medical opinions of Drs Murphy, O'Sullivan, Kellegher and Morgan were all put to her in the course of her cross-examination.

4 In his judgment Mr Justice Blayney analysed the expert opinions of the various doctors who gave evidence before him. He accepted the contention that information of circumstances and surrounding facts ascertained by the doctors were material to the opinions which they expressed. He concluded that the marriage of the Petitioner and the Respondent was null and void by reason of a personality disorder of Mrs O'Keefe. A significant symptom of the disorder was an aptness to tell lies about matters of no direct importance. It was, therefore, of importance, as the learned Judge recognised, for the doctors in reaching their expert opinion to make a judgment as to whether or not the Respondent had that propensity. The learned Judge reviewed the inquiries which the doctors had made in that respect and in addition went on to express his own view in the following terms:-

"I have had the opportunity of seeing both parties in the witness box and I have no hesitation in saying that where their evidence diverged I would accept the evidence of the Petitioner rather than that of the Respondent. It seems to me that in her evidence the Respondent was extremely evasive, that frequently she altered her evidence,maybe in small details, but within seconds of saying one thing she would say another in regard to the date on which she met the Respondent at thehotel."

5 In the circumstances the learned Judge made the decree of nullity. From that decree Mrs O'Keefe appealed to the Supreme Court and her appeal was dismissed on the 24th of July, 1990.

6 The proceedings herein were instituted by plenary summons issued on the 4th day of November, 1992. By notice of motion dated the 25th day of November, 1996, the thirdly named Defendant, Dr Casey, sought an order dismissing the Plaintiff's action as against her for want of prosecution and on the ground that the proceedings did not in any event disclose a cause of action against her. The matter was adjourned from time to time and ultimately heard by Mr Justice O'Sullivan on the 24th day of June, 1998. In the meantime a statement of claim had been delivered in November, 1997. The first and secondly named defendants in the proceedings are the solicitor and barrister who were, or had been, instructed to conduct the appeal in the matrimonial proceedings and against whom negligence in that regard was alleged by the Plaintiff. Against Dr Casey it was contended that she was negligent in failing to conduct a careful and thorough psychiatric examination: in failing to confirm with the Plaintiff adequately or at all facts disclosed to her by others in the course of the assessment and by placing reliance in reaching her conclusions upon inaccurate and incorrect information. The fourthly and fifthly named Defendants were sued as employers of DrCasey.

7 On the motion to strike out, Mr Justice O'Sullivan had the benefit of written submissions and argument by Counsel on behalf of both Mrs O'Keefe and Dr Casey. The learned Judgeacceded to the application on behalf of Dr Casey and made an order striking out such parts of the statement of claim as asserted a cause of action against her. He did so, as he explained, on the basis of the inherent jurisdiction of the Court to dismiss proceedings which disclosed no reasonable cause of action.

8 Mrs O'Keefe then sought to appeal the judgment and order of Mr Justice O'Sullivan. At that stage she did not retain a solicitor or counsel. This may explain why the notice of appeal and other documentation relating to it is very confusing in its terms and perhaps misconceived in its purpose. Mrs O'Keefe herself made numerous applications to the Supreme Court. One of her concerns was to obtain liberty to introduce new evidence for the purpose of the appeal. She appears to have been convinced that it was essential to adduce evidence which would support her contention that Dr Casey was incorrect or mistaken in the evidence of fact which formed the basis of her medical opinion. Mrs O'Keefe believed that she would advance her cause if she could produce evidence showing that Dr Casey had not made adequate inquiries on which to base her conclusions. In the result Mrs O'Keefe appears to have spent a great deal of time conducting inquiries and investigations with persons who did or could have provided evidence in relation to her personality or character. This was done notwithstanding the fact that it was clearly explained by Mr Justice O'Sullivan in his judgment that (applying...