Kielthy v Coombe Women and Infants University Hospital

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Denise Brett
• Judgment Date: 19 March 2024
• Neutral Citation: [2024] IEHC 173
• Docket Number: [Record No. 2022/2231P]

Between

Lorraine Kielthy

Plaintiff

and

Coombe Women and Infants University Hospital

Defendant

[2024] IEHC 173

[Record No. 2022/2231P]

THE HIGH COURT

JUDGMENT of Ms Justice Denise Brett delivered on the 19th day of March 2024 .

Background

1 . By notice of motion dated 25 July 2023 the defendant Hospital sought an order pursuant to Order 25, r.1 of the Rules of the Superior Courts directing “the following points of law [be tried] as preliminary issues”, namely: that the plaintiff's claim was barred pursuant to the Statute of Limitations Act 1957 (‘ the 1957 Act’) and the Statute of Limitations (Amendment) Act, 1991 (‘ the 1991 Act’) (collectively referred to as “ the Statute”, where relevant) and that the plaintiff's claim to be dismissed on grounds of delay. It was asserted then that facts necessary for the motion could be agreed.

2 . The defendant now seeks to amend this notice of motion to seek, pursuant to O.36, r.9(1) R.S.C, an order directing the two issues to be determined “as preliminary issues by way of oral testimony in advance of the hearing of the trial of the substantive issues”.

3 . The original notice of motion is grounded upon an affidavit of the defendant's solicitors, sworn on 26 July 2023. No further affidavit was sworn by or on behalf of the defendant.

4 . The original motion was issued six days after delivery of the Defence, which raised both the Statute and delay as preliminary issues, and before the Plaintiff filed her Reply thereto.

5 . The substantive proceedings arise out of an injury which the plaintiff sustained during the birth of her third child on 19 March 1995. The Personal Injuries Summons was issued on the 07 June 2022, 27 years later, such that, on their face, the proceedings appear to be outside their relevant limitation period and are, in any event, of some considerable vintage.

6 . Other than pleading the two preliminary issues, the Defence simply put the Plaintiff on full proof. It does not further particularise the preliminary issues nor assert any positive pleas in defence of the action.

7 . The substantive trial of the proceedings has been specially fixed for October 2024, for two weeks.

8 . The Reply dated 5th of September 2023 denies that the action is statute barred and pleads that the plaintiff instituted the proceedings within two years of her ‘date of knowledge’

as defined in the 1991 Act and alleges concealment by the defendant such as to amount to estoppel “ in circumstances where the defendant failed and neglected to advise the plaintiff of the nature and circumstances of the injury inflicted. In particular, the defendant:

An intention to rely upon the provisions of s.71 of the 1957 Act was also pleaded.

• (a) concealed the true nature and circumstances of her injury from the plaintiff.

• (b) Failed to advise the plaintiff that she had sustained a 3b tear to the perineum.

• (c) Advised the plaintiff that she had sustained “a small tear” when that was manifestly untrue.

• (d) Advised the plaintiff that her symptoms of faecal incontinence upon her discharge from the hospital following delivery of her child were attributable to an infection”.

9 . Counsel for the defendant, Mr Lucey SC confirmed that the second relief in the motion, in respect of delay, was not being pursued in the motion, albeit it remained open in the Defence for the substantive trial.

10 . I did not detect any serious opposition, if any, to the defendant's application to amend its motion and I will so order. Order 36, r.9 R.S.C. came into effect on 01 October 2016 and states:

“9. (1) Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time order:

(a) that different questions of fact arising therein be tried by different modes of trial;

(b) that one or more questions of fact be tried before the others;

(c) that one or more issues of fact be tried before any other or others.”

11 . The sole question for determination by the Court is whether to direct a separate trial on the Statute issue on oral evidence as a preliminary and determinative matter. Both sides referred to the principles outlined by the Supreme Court (McKechnie J) in Campion v South Tipperary Co. Co. [2015] 1 IR 716, at para. 35, as relevant when directing a trial of issues by preliminary hearing, subject to the distinction in this case of requiring oral evidence.

12 . In the grounding affidavit, the plaintiff's solicitor averred that “ there should be no reasonable impediment to agreeing the material facts between the parties” and that “ the questions of law are discreet and can be distilled from the factual matrix of the case”. This can self-evidently no longer be the case, given the application to amend to a preliminary hearing on oral evidence. The affidavit confirms that the defendant had been informed by way of letter dated the 3rd of February 2023 that the plaintiff first gained the requisite knowledge pursuant to Section 2(1) of the 1991 Act “ on receipt of expert opinion on the 30 May 2022”. Evidence on affidavit is not adequate to determine a date of knowledge issue (see: Coughlan v Minister for Defence [2020] IECA 53 and Fennell v Minister for Justice [2020] IEHC 236).

13 . A replying affidavit by the plaintiff's solicitor was sworn on the 13th of September 2023 and addresses each of the points raised by the defendant in its grounding affidavit, and some omissions. It highlights that the defendant knew in advance of drafting its Defence that the plaintiff was pleading a date of knowledge of 30 May 2022, which the defendant had not disputed, and sets out the concealment alleged in respect of the tear suffered by the plaintiff and an incorrect explanation for symptoms at the time.

14 . Mr Lucey SC readily accepted the long established case law which confirms that a unitary trial, with all issues being determined in one hearing, is preferable and is the starting point of any such consideration (see: Weavering Macro Fixed Income Fund Ltd (In liquidation) v PNC Global Servicing (Europe) Ltd [2012] 4 IR 681 (High Court, Clarke J.); Campion v South Tipperary Co. Co. [2015] 1 IR 716 (Supreme Court, McKechnie J.) (“ Campion”) and, most recently, O Sullivan v Ireland [2020] I IR 413 (“ O Sullivan”).

15 . He submits however that a separate, discreet trial on a preliminary point can be directed where it can be shown that this would be the best use of court time if a matter is amenable to determination in advance of the trial and would lead to an expeditious determination thereof. He emphasised that, in this case the issue is a net point that could be heard on ‘limited evidence’ (per Finlay Geoghegan J in O Sullivan) and that if the defendant succeeded on the Statute, it would dispose of the entire case and therefore there would be a large saving of time and expense. He suggested a timescale of two days for such a preliminary hearing.

16 . Mr Lucey highlighted the judgment in Elliott v ACC Bank [2020] IECA 278 (a case on directing trial of a preliminary matter under O. 25 RSC concerning negligence in financial dealings) in which the Court of Appeal upheld the trial of a preliminary issue on oral evidence as “ not unfair”; and O Sullivan (a case on the interpretation of the date of knowledge provisions in the 1991 Act, originally heard as a preliminary issue on oral evidence) as examples where such a preliminary trial on oral evidence had occurred.

17 . He referred to the particulars of wrong alleged by the plaintiff in her personal injury summons as covering dates from April 1996 to 2007 to demonstrate that the plaintiff must have known she had a significant injury within that timeframe and before she retained her experts. Such argument would not trespass upon issues to be determined at trial and that any overlap between the evidence required to determine the preliminary issue of the Statute with obstetric evidence required for liability would differ in emphasis because of their differing purpose.

18 . Mr Lucey indicated the defendant was hopeful of relying upon cross examination of the plaintiff only without the need for witnesses on behalf of the defendant for a preliminary trial.

19 . Mr Fitzpatrick SC, counsel for the plaintiff, opposed the...