Keeve v Health Service Executive

JurisdictionIreland
JudgeMr. Justice MacGrath
Judgment Date13 February 2019
Neutral Citation[2019] IEHC 370
CourtHigh Court
Docket Number[2014 No. 2900 P]
Date13 February 2019

[2019] IEHC 370

THE HIGH COURT

MacGrath J.

[2014 No. 2900 P]

BETWEEN
PATRICK KEEVE
PLAINTIFF
AND
HEALTH SERVICE EXECUTIVE

AND

LETTERKENNY GENERAL HOSPITAL
DEFENDANTS

Preliminary issue – Damages – Negligence – Defendants seeking trial of preliminary issue – Whether the plaintiff could maintain a claim for nervous shock in witnessing the back pain suffered by his late wife

Facts: By order dated 31st July, 2017, Barr J directed the trial of a preliminary issue in these proceedings, in which the plaintiff, Mr Keeve, claimed damages for injuries allegedly suffered by him in consequence of the alleged negligence and breach of duty on the part of the defendants, Health Service Executive and Letterkenny General Hospital, when treating his late wife. Although not stated in the order, the High Court had been informed that the order was made on consent and it was in the following terms: “IT IS ORDERED that without further pleadings a preliminary issue be tried before a Judge without a jury wherein the Defendants shall be Plaintiff and the Plaintiff Defendant the question at the trial of such issue be as to whether the Plaintiff can maintain a claim for nervous shock in witnessing the back pain suffered by his late wife Mary Keeve which shock is alleged to have been caused by negligence claimed against the Defendants in failing to diagnose a disc legion”.

Held by MacGrath J that the circumstances in which the duty of care was said to arise, or not, were unclear, the state of the pleadings was unsatisfactory and no evidence had been subjected to consideration by the court beyond reference to affidavit evidence adduced for the purposes of the initial application; and two further affidavits which had been prepared in the context of the application to amend. The court was in effect being requested to determine the preliminary issue without any real evidence and on the basis of pleadings acknowledged to be less than satisfactory, or on the basis of pleadings that might exist. Even approaching the case on a de bene esse basis i.e. as if the pleadings were amended in line with the proposed motion, in MacGrath J’s view if the court was to rule on the preliminary issue as it had unfolded it would be to fail to heed the warning in L.M. v Director of Public Prosecutions [2015] 2 IR 45. To rule on the application on the basis of the proceedings as initially instituted, in MacGrath J’s view, was even more unsatisfactory and somewhat inconsistent with the approach adopted by the Supreme Court in Sun Fat Chan v Ossseous Limited [1992] 1 IR 425; even on the original pleadings, complaint was made that the manner in which the plaintiff was treated led to injury.

MacGrath J held that, in the circumstances, he would not accede to the defendants’ application.

Application refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 13th day of February, 2019.
1

By order dated 31st July, 2017, Barr J. directed the trial of a preliminary issue in these proceedings, in which the plaintiff claims damages for injuries allegedly suffered by him in consequence of the alleged negligence and breach of duty on the part of the defendants when treating his late wife. Although not stated in the order, the court has been informed that the order was made on consent and it is in the following terms:-

‘IT IS ORDERED that without further pleadings a preliminary issue be tried before a Judge without a jury wherein the Defendants shall be Plaintiff and the Plaintiff Defendant the question at the trial of such issue be as to whether the Plaintiff can maintain a claim for nervous shock in witnessing the back pain suffered by his late wife Mary Keeve which shock is alleged to have been caused by negligence claimed against the Defendants in failing to diagnose a disc legion’.

2

The plaintiff instituted proceedings by way of personal injuries summons on 4th March, 2014 having received an authorisation from the Personal Injuries Assessment Board on 30th October, 2013. He claims damages for physical harm and emotional distress allegedly caused by the negligence and breach of duty of the defendants, its servants or agents in failing to diagnose and care for his wife in the period from July, 2011 to February, 2012.

3

Mr. Keeve's wife passed away on 6th July, 2012 from a cause unconnected with her back ailment. In replies to particulars delivered on 29th February, 2016, it is stated that her death is believed to have been due to a burst ulcer and cirrhosis of the liver. The late Mrs. Keeve endured a number of medical conditions from approximately 2009 onwards and these required frequent visits to hospital. It is pleaded that in the summer of 2011 she developed back pain which became chronic and severe. Conventional pain management by her general practitioner failed and the pain continued after her transfer to St. Joseph's Nursing Home, Stranorlar. Her condition worsened to the extent that in early December, 2011 she was admitted to Letterkenny General Hospital. It is also pleaded that the defendant's medical team accepted that there had been a failure to diagnose her condition correctly and that she had suffered unnecessarily.

4

It is the contention of the plaintiff that as a result of the failure to diagnose his wife's condition correctly, he suffered acute distress which impacted upon his physical health. He further pleads that when his late wife resided with him in the summer and autumn of 2011, he witnessed her severe pain and felt helpless. It is to be noted that this period predates her admission to hospital in December, 2011.

5

The plaintiff also pleads, in particular, that his ‘ seeming inability to convince the Defendant, its servants or agents of her condition for several months caused him depression’. It is also alleged that:-

‘The events leading up to the death of his wife in July 2012 has caused him distress and depression, which is still ongoing. This was compounded by this inability to convince the Defendants, its servants and or agents of the gravity of the situation until it admitted at the end of December 2011 that it has failed to diagnose a disc lesion between her L2 and L3 discs.

Further the ongoing depression caused him to develop hyper-tension, high blood pressure and cardiac pain, all of which required treatment.

The circumstances of his Wife's treatment from July 2011 – February 2012 and in particular the resistance of the Defendant's agents to his appeals for help, coupled with her death, have prolonged his physical and emotional problems.’

6

The personal injuries summons was verified by affidavit sworn on 6th March, 2015.

7

A notice for particulars was raised requesting, inter alia, details of Mrs. Keeve's experience of pain in the summer and autumn of 2011 and of the plaintiff's attempts to convince the hospital of the seriousness of that pain. In reply it is confirmed that the plaintiff had complained to the defendants, their servants and/or agents on numerous occasions and on a daily basis when his wife was in the hospital.

8

A full defence has been delivered. It is pleaded that the claim is barred pursuant to the Statute of Limitations 1957, as amended. This issue, however, does not fall for consideration on this application. A further argument advanced in written submissions is that it is an abuse of process to maintain proceedings for medical negligence where the plaintiff does not and has not ever possessed medical opinion in support of the allegations of negligence. In the personal injuries summons allegations of negligence and breach of duty are not particularised. The court is invited to draw an inference from this that the plaintiff does not have the benefit of expert medical opinion to support his claim and, it is submitted, that this has been confirmed by Mr. Dominic Brennan, solicitor for the plaintiff, in an affidavit sworn on 27th June, 2018. It must be stated that this issue is not expressly reflected in the order of Barr J. and it has been referred to as a secondary issue. Reliance is placed on Flynn v. Bon Secours Health Systems Ltd [2014] IEHC 87. While it may well be appropriate for the defendants to pursue an application to dismiss the proceedings for abuse of process, it appears that this issue does not fall clearly within the terms of the order of Barr J. It is fair to say that the central issue pursued and debated on this application relates to the nature and extent of the duty of care alleged to be owed by the defendants to the plaintiff.

9

The personal injuries summons was amended on 4th March, 2014 and from what can be observed, the only amendment made at that time related to the substitution of the name of counsel who settled the proceedings.

10

Mr. James Sweeney, solicitor for the defendants, swore an affidavit on 9th May, 2017, for the purpose of the application to have the preliminary issue tried. Exhibited to that affidavit is a medical report in which opinion is expressed that the plaintiff had not suffered a recognised psychiatric injury. It is the contention of the defendants that any psychiatric illness which the plaintiff experienced was not shock induced. They contend that the plaintiff did not witness any single, horrifying event and that he pleads distress which developed over a prolonged period and on an incremental basis. The defendants submit that such incremental development of a condition is excluded by the legal test applicable to recovery for nervous shock and that the plaintiff must prove that the condition complained is induced by shock.

11

The application comes before the court without any significant evidence having been adduced. In fact, the application has been based largely on the pleadings and the affidavit upon which the initial application to Barr J. was brought. To add further complication, application has been made to amend the pleadings and I shall address this below. The affidavits grounding this...

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1 cases
  • Harford v Electricity Supply Board
    • Ireland
    • High Court
    • 2 June 2020
    ...a nervous shock case squarely and unambiguously satisfying the five Kelly v. Hennessy requirements. 41 Reference is made to Keeve v. HSE [2019] IEHC 370 which involved a discussion where there was a preliminary issue. MacGrath J. noted that there was a general reluctance in this jurisdictio......
1 books & journal articles

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