O'K v DK (Witness: immunity)

• Jurisdiction: Ireland
• Judgment Date: 01 February 2001
• Docket Number: [1992 No. 7133P]
• Date: 01 February 2001
• Court: High Court

High Court

[1992 No. 7133P]

E. O'K. v. D.K. (Witness: immunity)

E. O'K.

Plaintiff

and

D.K., M.N., P.C., Erinville Hospital and Southern Health Board

Defendants

Cases mentioned in this report:-

Evans v. London Hospital Medical College [1981] 1 W.L.R. 184; [1981] 1 All E.R. 715.

Fagan v. Burgess [1999] 3 I.R. 306.

Hall & Co. v. Simons [2000] 3 W.L.R. 543; [2000] 3 All E.R. 673.

In re Haughey [1971] I.R. 217.

Looney v. Bank of Ireland (Unreported, Supreme Court, 9th May, 1997).

Marrinan v. Vibart [1963] 1 Q.B. 234; [1962] 2 W.L.R. 1224; [1962] 1 All E.R. 869.

Palmer v. Durnford Ford [1992] Q.B. 483; [1992] 2 W.L.R. 407; [1992] 2 All E.R. 122.

Rondel v. Worsley [1969] 1 A.C. 191; [1967] 3 W.L.R. 1666; [1967] 3 All E.R. 993.

Roy v. Prior [1970] 3 W.L.R. 202; [1970] 2 All E.R. 729.

Saif Ali v. Sydney Mitchell & Co.(a firm) [1980] A.C. 198; [1978] 3 W.L.R. 849; [1978] 3 All E.R. 1033.

Stanton v. Callaghan [2000] Q.B. 75; [1999] 2 W.L.R. 745; [1998] 4 All E.R 961.

Witness - Immunity - Expert witness appointed by court - Oral evidence - Whether witness having immunity from suit - Whether immunity applicable to expert witness.

Motion on notice.

The facts are summarised in the headnote and are fully set out in the judgment of O'Sullivan J., infra.

Following the dismissal by the High Court (O'Sullivan J.) on the 24th June, 1998, of the plaintiff's claim against the third defendant on the grounds that no cause of action was disclosed, a notice of appeal dated the 9th July, 1998, was lodged. The appeal came on for hearing in the Supreme Court on the 17th November, 2000. When the defence raised the issue of the immunity of the third defendant as a witness the Supreme Court remitted the issue to the High Court for determination since it had not been argued there.

The matter was heard by the High Court (O'Sullivan J.) on the 18th and 23rd January, 2001.

The plaintiff's husband petitioned the High Court for a decree of nullity. In the proceedings the Master of the High Court, by order, appointed the third defendant to carry out a psychiatric examination of the plaintiff and to present a report to the court. The marriage was declared null and void by the High Court.

The plaintiff claimed, inter alia, damages from the third defendant for negligence and breach of duty in failing to perform the examination of the plaintiff and to prepare her report and give her evidence with reasonable skill and care, as a result of which the plaintiff had suffered loss and damage because of the consequential declaration of nullity by the High Court and her resulting inability to claim maintenance payments or statutory benefits and had suffered an infringement of her rights under Articles 41 and 42 of the Constitution.

A motion was brought in the High Court by the third defendant seeking to have the plaintiff's claim dismissed on the grounds that the proceedings did not disclose any cause of action, where it was argued for the third defendant that that defendant enjoyed an immunity from suit in negligence in respect of the giving of evidence in court.

Held by the High Court, (O'Sullivan J.), in dismissing the action against the third defendant, 1, that a witness was immune from suit in respect of oral evidence and with regard to documents produced in the course of a hearing.

Looney v. Bank of Ireland (Unreported, Supreme Court, 9th May, 1997) applied.

2. That there was no basis for distinguishing between an expert witness and any other witness.

Looney v. Bank of Ireland (Unreported, Supreme Court, 9th May, 1997) applied.Fagan v. Burgess[1999] 3 I.R. 306 considered. Stanton v. Callaghan[2000] Q.B. 75 distinguished.

Cur. adv. vult.

O'Sullivan J. 1st February, 2001

Introduction

On the 12th July, 1983, the plaintiff married one D. O'K.

In 1986, the said D. O'K. petitioned the High Court for a decree of nullity of his marriage with the plaintiff. By order of the Master of the High Court, the third defendant was appointed to carry out a psychiatric examination of the plaintiff and to report in writing to the court thereon, the said report to be transmitted by the third defendant by registered post in a sealed envelope addressed to the Master of the High Court, Four Courts, Dublin 7. The plaintiff was ordered to attend at an appointed place for the purpose of examination by the third defendant.

By order of the High Court (Blayney J.) of the 26th June, 1987, the plaintiff's marriage with the said D. O'K was declared null and void for the reason that the plaintiff at the date of the 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 said D. O'K. That decree of nullity was appealed to the Supreme Court which by order of the 24th July, 1990, dismissed the plaintiff's appeal and affirmed the High Court order.

By plenary summons dated the 4th November, 1992, the plaintiff initiated the present proceedings in which she is claiming, inter alia, damages from the third defendant for negligence. I summarise that claim as follows:-

• (A) having been appointed by the Master of the High Court in the matrimonial proceedings, the third defendant owed a duty of reasonable skill and care to the plaintiff in her examination, report and evidence;

• (B) the third defendant examined the plaintiff and in an initial report referred to conflicting histories given by the plaintiff and her husband and to the fact that it was not possible to ascertain which was correct although she was inclined to the view that the plaintiff was suffering from a personality disorder;

• (C) this diagnosis would be confirmed if other sources confirmed the veracity of the history given by the plaintiff's husband;

• (D) the third defendant furnished an addendum to her...