Keane v Western Health Board and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke,,Mr. Justice Quirke
• Judgment Date: 22 November 2006
• Neutral Citation: [2006] IEHC 283,[2006] IEHC 370
• Court: High Court
• Docket Number: [2000 No. 8232P]
• Date: 22 November 2006

[2006] IEHC 283

THE HIGH COURT

[No. 8232P/2000]

KEANE v WESTERN HEALTH BOARD & MEEHAN

BETWEEN

PADRAIC KEANE (AS PERSONAL REPRESENTATIVE OF THE LATE MRS. AGNES KEANE)

PLAINTIFF

AND

THE WESTERN HEALTH BOARD AND MRS. ANN MEEHAN

DEFENDANTS

CIVIL LIABILITY ACT 1961 PART IV

CIVIL LIABILITY ACT 1961 S9(2)

CIVIL LIABILITY ACT 1961 S9(2)(b)

CIVIL LIABILITY ACT 1961 S8

CIVIL LIABILITY ACT 1961 S9

MOYNIHAN v GREENSMYTH 1977 IR 55

STATUTE OF LIMITATIONS 1957 S2(b)

O'BRIEN v KEOGH 1972 IR 144

FOLEY v IRISH LAND COMMISSION 1952 IR 118

AG v SOUTHERN INDUSTRIAL TRUST LTD 1960 94 ILTR 161

CONSTITUTION ART 40.3.2

CIVIL LIABILITY ACT 1961 S8(2)

CIVIL LIABILITY ACT 1961 S31

Abstract:

Practice & Procedure - Tort law - Medical negligence - Delay in prosecution - Personal Representative - Death of defendant - Civil Liability Act 1961, s. 9(2)

: A preliminary issue arose for consideration in the substantive medical negligence proceedings issued prior to the death of the plaintiff but after the death of the defendant doctor, as to whether the proceedings were maintainable against the personal representative of the late doctor pursuant to s. 9(2) of the Civil liability Act 1961 and whether it was appropriate to dismiss the plaintiff's claim on grounds of inordinate and inexcusable delay.

Held by Quirke J., that the Court would not dismiss the plaintiff's claim by reason of delay alone as it was explicable and the absence of the doctor through decease alone was insufficient. However, as no proceedings were commenced within the relevant period or were pending at the death of the doctor, the claim remained barred by the provisions of s. 9 of the Civil Liability Act 1961.

Reporter: E.F.

1 JUDGMENT of the Hon. Mr. Justice Quirke delivered the 2nd day of October 2006 .

2 The plaintiff's substantive claim in these proceedings is brought pursuant to the provisions of Part IV of the Civil Liability Act, 1961of his own behalf and on behalf of all of the statutory dependents of the late Agnes Keane, deceased, who was the plaintiff's wife and who died on the 9th July 2002.

3 The late Mrs. Keane was admitted to the Regional Hospital in Galway on 29th June, 1983, at the request of Dr. F.B. Meehan who was a consultant obstetrician at the Hospital. The plaintiff claims that his wife's death was caused by reason of his negligence and breach of duty on the part of the Regional Hospital and on the part of Dr. Meehan.

4 The first defendant (hereafter "the Board") is sued as the Body responsible for the Regional Hospital. The second defendant is the widow and the personal representative of the late Dr. Meehan who died on 25th February, 1991.

ISSUES

5 The following issues are before this court for determination:

6 1. A preliminary issue pursuant to an Order of the High Court (Johnson J.) dated 5th December, 2005, requiring this court to determine questions in the following terms:

7 (i) Whether these proceedings are maintainable against the second named defendant as the personal representative of the late Dr. Fergus Meehan having regard to s. 9(2) of the Civil Liability Act, 1961as pleaded in paragraph 1 of the Defence of the second named defendant delivered on the 11th day of October, 2005 and

8 (ii) Whether the court, pursuant to its inherent jurisdiction, should dismiss these proceedings against the second-named defendant, having regard to the matters identified in paragraph 2 of the Defence of the second named defendant delivered on the 11th day of October, 2005 and

9 2. An application on foot of a notice of motion dated 6th February, 2006 on behalf of the Board for an order dismissing the plaintiff's claim against the Board on the grounds of alleged inordinate and inexcusable delay on the part of the plaintiff in commencing and prosecuting his claim against the Board and

10 3. Consequent upon the delivery by the Board of a notice claiming contribution and indemnity from the second named defendant in respect of the plaintiff's claim against the Board this court has, on the application of the parties, agreed to determine the issue whether the Board's claim for indemnity and contribution against the second named defendant is maintainable having regard to the provisions of s. 9(2)(b) of the Civil Liability Act, 1961.

RELEVANT FACTS

11 1. The late Mrs. Agnes Keane, who was then pregnant and expecting twins, was admitted to the Galway Regional Hospital on 29th June, 1983, on the instructions of the hospital's Consultant Obstetrician and Gynaecologist Dr. Fergus B. Meehan. She was believed to be suffering from pre-eclampsia. Pre-eclampsia is a serious condition associated with pregnancy which, if untreated, can lead to the development of convulsions and fits.

12 She was detained in hospital on admission. On 9th July, she developed fits and a convulsion and lapsed into a coma. Her twins were successfully delivered by Caesarean section. They were healthy and well on birth and are now in their early 20's.

13 Tragically Mrs. Keane remained in a coma for 19 years. She died on 9th July, 2002 without having regained consciousness.

14 2. On 25th February, 1991, whilst the late Mrs. Agnes Keane was still comatose and in a vegetative condition Dr. Fergus Meehan died.

15 A Grant of Probate to the estate of the late Dr. Meehan was extracted by his widow Ann Meehan on the 9th day of April, 1992.

16 3. During the 19 year period between 1983 and the date of Mrs Keane's death in 2002 the plaintiff retained the hope and belief that his wife would recover from her condition and regain consciousness. He was in constant attendance upon her during that time. Concurrently he discharged his parental responsibility towards the twin children of the marriage conscientiously and reared them in a careful and devoted manner. He is a storeman by occupation.

17 4. In late 1995 or early 1996 the plaintiff's solicitors corresponded with the Board and with the second named defendant seeking to investigate the circumstances surrounding the late Mrs. Keane's admission to and treatment in the Regional Hospital in 1983 and the circumstances surrounding her subsequent catastrophic deterioration and eventual death.

18 A detailed and careful investigation by the plaintiff's solicitors into those matters continued for a number of years. The evidence adduced in these proceedings has established that the investigation was conducted as expeditiously as was reasonably possible in the circumstances.

19 5. On 14th July, 2000, a Plenary Summons was issued on behalf of the late Mrs. Keane seeking damages for personal injuries sustained by the late Mrs. Keane arising out of alleged negligence on the part of the Board and of Dr. Meehan.

20 The proceedings were served upon the Board and upon the second named defendant as personal representative of the late Dr. Keane.

21 On the 10th December, 2001, a Statement of Claim was delivered on behalf of the late Mrs. Keane.

22 On the 8th July, 2002, the late Mrs. Keane died.

23 No Plenary Summons was issued on behalf of the plaintiff by way of initiation of his claim pursuant to provisions of part IV of the Act of 1961.

24 However, by Order of Master of the High Court dated the 7th July, 2005, made on the application of the plaintiff, it was ordered that "...pursuant to Order 17 rule 4 of the Rules of the Superior Courts that Patrick Keane as the Personal Representative of the late Agnes Keane be made a party to the proceedings herein."

25 In subsequent correspondence, the solicitors on behalf of the Board and the solicitors on behalf of the second named defendant agreed and expressly or implicitly acknowledged that the personal injuries proceedings which had been commenced on behalf of the late Mrs. Keane have been validly converted into a claim by the plaintiff pursuant to the provisions of part IV of the Civil Liability Act, 1961on behalf of the plaintiff and on behalf of the statutory dependents of the late Agnes Keane for damages for her wrongful death.

26 Although this issue was raised and not abandoned by Mr McGrath S.C on behalf of the second named defendant it was not pressed. For the avoidance of doubt I should say that I am satisfied, on the evidence, that the defendants are estopped by their conduct from contending that the plaintiff's claim pursuant to the provisions of part IV of the Act of 1961 was not commenced on the 7th July, 2005. The conversion by agreement is deemed to have been completed on the 7th July, 2005 by the Order of the Master of the High Court of that date.

27 On the 5th October 2005, an amended Statement of Claim was delivered on behalf of the plaintiff.

MOTIONS TO DISMISS

28 At the conclusion of the evidence adduced in these proceedings 22nd June, 2006, I declined to dismiss the plaintiff's claim against the Board on the ground of inordinate and inexcusable delay by the plaintiff in prosecuting his claim and consequent prejudice to the Board in its capacity to defend the claim. I gave my reasons for that ruling at that time.

29 I decline also to dismiss the plaintiff's claim against the second named defendant on the grounds of inordinate and inexcusable delay on the part of the plaintiff commencing in prosecuting his claim against the second named defendant.

30 My reasons are the same of those given in relation to the application made on behalf of the Board. I find that whilst the delay in prosecuting the plaintiffs claim was prima facie inordinate it was and remains clearly explicable having regard to the extraordinary circumstances in which the plaintiff found himself immediately after this tragic occurrence. It was perfectly understandable that he should spend the greater part of 19 years during which his wife remained comatose attending his wife's bedside and caring for their twin children.

31 As I...