Kelly v Sleeman

JurisdictionIreland
JudgeMs. Justice Power
Judgment Date29 October 2020
Neutral Citation[2020] IECA 293
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2014/1019
BETWEEN
FRANCES KELLY
APPELLANT
-AND-
PROFESSOR DUNCAN SLEEMAN, UNIVERSITY COLLEGE CORK, NATIONAL UNIVERSITY OF IRELAND

AND

THE SOUTHERN HEALTH BOARD
RESPONDENT

[2020] IECA 293

Noonan J.

Power J.

Binchy J.

Record Number: 2014/1019

THE COURT OF APPEAL

Medical negligence – Prima facie case – Expert evidence – Appellant claiming medical negligence against the respondents – Whether a prima facie case had been established

Facts: The appellant, Ms Kelly, was involved in a car accident on 4 May 2000 and suffered serious facial injuries. She was taken to Cork University Hospital (CUH) where she came under the care of the respondents, Professor Sleeman, University College Cork, National University of Ireland and the Southern Health Board. The following day, she underwent extensive medical treatment in CUH which included, inter alia, the suturing of lacerations to her tongue, significant dental procedures and the fixation of mandibular fractures. The appellant developed necrosis of part of her tongue which, ultimately, required to be removed and debrided. It was the appellant’s case that the ‘partial amputation’ of her tongue and the adverse sequalae that followed were caused by the reason of the negligence and breach of duty on the part of the respondents in or about the timely provision of medical and/or surgical treatment. Just under three years post-accident, proceedings were instituted by way of Plenary Summons dated 11 April 2003. A further three years elapsed before a Statement of Claim was delivered. Thereafter, several Notices of Intention to Proceed were served on behalf of the appellant and the case eventually came on for hearing before the High Court (Barr J) on 24 October 2013. On 25 October 2013, the trial judge dismissed the proceedings taken by the appellant against the respondents on the basis that a prima facie case had not been established. The appellant appealed to the Court of Appeal from the Judgment (ex tempore) and Order of the High Court. At the hearing of the appeal the Court was informed that the appellant’s claim as against the first respondent was no longer being pursued and that the case was proceeding only as against the second to fourth respondents. The appellant contended that the trial judge erred in that his conclusions were not based on evidence, that ‘fairness’ required the granting of an adjournment and that the trial judge ‘unfairly favoured the defence’.

Held by Power J that the question of what treatment ought to have been afforded to the appellant and when, and the further question as to whether such treatment would have made any difference to the final outcome were matters that lay beyond the expertise of judges, lawyers and the appellant herself. Power J held that they were issues that could only be determined on the basis of expert medical opinion. Power J noted that no such opinion was tendered in this case. Power J held that the appellant’s beliefs and convictions were not, in themselves, sufficient to sustain a claim of medical negligence against the respondents. Power J found that the appellant displayed a certain misunderstanding as to the role of the courts in determining disputes that arise between parties.

Power J held that the trial judge did not fall into error in his determination of the appellant’s claim. Power J dismissed the appeal. Having had regard to the respondents’ position on costs, Power J made no order as to the costs of the appeal and vacated that part of the order of the High Court awarding costs to the respondents.

Appeal dismissed.

JUDGMENT of Ms. Justice Power delivered on the 29 th day of October 2020
1

This appeal is brought from the Judgment (ex tempore) and Order of the High Court (Barr J.) of 25 October 2013 whereby the trial judge dismissed the proceedings taken by the appellant, (as plaintiff) against the respondents (as defendants) on the basis that a prima facie case had not been established. At the hearing of this appeal the Court was informed that the appellant's claim as against the first named respondent was no longer being pursued and that the case was proceeding only as against the second to fourth named respondents.

Background
2

The appellant was involved in a car accident on 4 May 2000 and suffered serious facial injuries. She was taken to Cork University Hospital (‘CUH’) where she came under the care of the respondents. The following day, she underwent extensive medical treatment in CUH which included, inter alia, the suturing of lacerations to her tongue, significant dental procedures and the fixation of mandibular fractures.

3

The appellant developed necrosis of part of her tongue which, ultimately, required to be removed and debrided. It is the appellant's case that the ‘partial amputation’ of her tongue and the adverse sequalae that followed were caused by the reason of the negligence and breach of duty on the part of the respondents in or about the timely provision of medical and/or surgical treatment.

4

Just under three years post-accident, proceedings were instituted by way of Plenary Summons dated 11 April 2003. A further three years elapsed before a Statement of Claim was delivered. It sets out various particulars of negligence and breach of duty against the respondents which include failing to exercise reasonable care, skill and diligence in treating the injuries, failing to suture the appellant's tongue as soon as practicable, failing to advise her of the risk of not suturing her tongue until 27 hours post injury, and causing or permitting the development of necrosis. It is also alleged that the respondents carried out the appellant's treatment, care and management ‘in a manner that lacked the skill which would normally be exhibited by a surgeon who had the necessary professional care, skill and competence’. A plea of res ipsa loquitur is also made.

5

Thereafter, several Notices of Intention to Proceed were served on behalf of the appellant and the case eventually came on for hearing before Barr J. on 24 October 2013. The appellant did not have legal representation at trial.

High Court
6

During the hearing the appellant gave evidence in chief as to how the accident had occurred and as to the medical treatment she had received thereafter. She was subjected to cross examination. When she had completed her evidence, she did not call any witnesses in support of the serious allegations of professional negligence which she had made against the respondents.

7

An application to dismiss the case was then made on the basis that the appellant had failed to make out a prima facie case against the respondents. Judgment was delivered on the same day.

8

In his judgment, the learned judge outlined the significant injuries to her head, face and mouth suffered by the appellant in the car accident noting, in particular, the ‘serious injury to her tongue’. He pointed out that the appellant ‘ran this case on her own’ and observed that she was clearly ‘a woman of considerable intelligence and resilience’. She had given her evidence ‘in a logical and clear manner’. The judge noted that the appellant had not been able to offer any expert evidence in support of her claim.

9

Barr J. then considered the application to dismiss the claim which had been made on behalf of the respondents. They had submitted that in the light of Hetherington v Ultra Tyre Service Ltd [1993] 2 I.R. 535 and O'Toole v Heavey [1993] 2 I.R. 544, the question which the court had to decide was whether a prima facie case had been made out by the appellant as against the respondents. Noting the absence of any expert evidence against the respondents, the trial judge recalled the judgment of the Supreme Court in Sugg v O'Keeffe & Anor. [2005] IESC 92 wherein Geoghegan J. had stated that: -

“A court will never hold a professional person guilty of negligence without professional evidence from another professional supporting the assertion of the claim of negligence and that is wholly absent here.”

10

Barr J. was satisfied that, in the absence of any medical evidence against the respondents, a prima facie case had not been established. He also rejected the plea of res ispa loquitur, observing that the mere fact of the operation being carried out on the day after the accident, could not be, of itself, indicative of negligence on the part of the respondents. Accordingly, the trial judge made an order striking out the appellant's claim and he awarded the costs of the action to the respondent, with a stay in the event of an appeal.

Grounds of Appeal
11

Without identifying how or why the High Court judge fell into error, the appellant, in her Grounds of Appeal, pleads that:

1. ‘the respondents remain vicariously liable for breach and/or failure in omission/delay in the provision of a surgical consultation, clinical examination, diagnosis, management or treatment of severe injuries and resultant danger, bleeding, pain and loss therefrom and/or until there is provided disclosure of evidence proving to the contrary’;

2. a highly complex personal injuries case, such as this one, involving a severe and unique wound was quickly dismissed prior to and without consultation or advice from any medical doctor or specialist in the field, independent or otherwise, and in the absence of the appellant's medical expert;

3. there are ongoing breaches and/or transgressions of Constitutional and human rights: and

4. there has been an additional failure of non-judicial authorities, such as, the Medical Council to avert or avoid judicial process through flawed investigation and/or procedure, thereby, forcing prolonged litigation and exceptional circumstances of severe hardship.

In an additional, undated, document entitled ‘Grounds of Appeal’ the appellant contended that the trial judge erred in that his conclusions were not based on evidence; that ‘fairness’ required the granting of an adjournment and that the trial...

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