Lawless v Beacon Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 14 December 2018
• Neutral Citation: [2018] IEHC 736
• Court: High Court
• Docket Number: [2015 No. 10056 P.]
• Date: 14 December 2018

[2018] IEHC 736

THE HIGH COURT

Binchy J.

[2015 No. 10056 P.]

BETWEEN

LISA LAWLESS

PLAINTIFF

AND

BEACON HOSPITAL, BEACON HOSPITAL SANDYFORD LTD, MO'IAD ALAZZAM, ROBERT HANNON

AND

ADMAN HAFEEZ

DEFENDANTS

Personal injury - Personal injuries summons - Renewal - Plaintiff seeking renewal of personal injuries summons - Whether the plaintiff had established a good reason to renew the personal injury summons

Facts: The plaintiff, Ms Lawless, claimed that she was caused to suffer and sustain severe personal injury, loss and damage owing to the negligence, breach of duty and breach of contract on the part of the defendants, Beacon Hospital, Beacon Hospital Sandyford Ltd, Dr Alazzam, Dr Hannon and Dr Hafeez. The plaintiff applied to the High Court seeking: 1) an order pursuant to O. 8, r. 1 of the Rules of the Superior Courts (RSC) renewing the personal injuries summons for such period as the court should deem fit; 2) an order for liberty to amend the personal injuries summons issued on 2nd December, 2015 in the terms underlined in the draft amended personal injury summons, exhibited in the affidavit of Mr Tiernan; and 3) an order dispensing with the service of the amended personal injuries summons. This application to court was necessary because the personal injuries summons issued on the part of the plaintiff on 2nd December, 2015 was not served within the period of twelve months from its date of issue. It was not contended by the plaintiff or her solicitors that any efforts were made to serve the defendants until 4th May, 2017. Accordingly, this application depended upon the plaintiff establishing that there was "other good reason" for not serving the summons before that date.

Held by Binchy J that the plaintiff had failed to establish a good reason to renew the personal injury summons, within the meaning of O. 8, r. 1 of the RSC.

Binchy J held that the application must be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Binchy delivered on the 14th day of December, 2018

1 By this application the plaintiff seeks the following orders:-

'1. An order pursuant to O. 8, r. 1 of the Rules of the Superior Courts renewing the personal injuries summons herein for such period as this honourable court shall deem fit.

2. An order for liberty to amend the personal injuries summons duly issued herein on the 2nd day of December, 2015 in the terms underlined in the draft amended personal injury summons, exhibited in the affidavit of Mark Tiernan, duly sworn herein and

3. An order dispensing with the service of the amended personal injuries summons.'

Background and chronology of events

2 The plaintiff, who was born on 15th February, 1981, received treatment at the Beacon Hospital between 3rd December, 2013 and 16th December, 2014. That hospital is owned, occupied and managed by the second named defendant herein. I am given to understand that the first named defendant is a business name only, and may not be a legal person, but nothing turns on this issue for the purpose of this application. The third to fifth named defendants are, or were, at the relevant times consultants operating out of the Beacon Hospital. The personal injuries summons describes the specific specialties of the third to the fifth named defendants as follows: the third named defendant is an obstetrician and gynaecologist, the fourth named defendant is a colorectal surgeon and the fifth named defendant is a general surgeon. The personal injuries summons in the indorsement of claim, also refers to a sixth named defendant, a urologist, but there no sixth named defendant in the title proceedings.

3 It is the plaintiff's claim in these proceedings that she was caused to suffer and sustain severe personal injury, loss and damage owing to the negligence, breach of duty and breach of contract on the part of the defendants.

4 It is claimed that the plaintiff was received into the care of the first/ second named defendant's hospital initially on 3rd December, 2013, under the care of the third named defendant who performed a diagnostic laparoscopy and, thereafter, diagnosed the plaintiff with extensive endometriosis. He advised her to undergo a colonoscopy and referred her to the fourth named defendant for further assessment and/or advice. She was admitted to the same hospital for this purpose on 7th January, 2014. It is claimed that the plaintiff was admitted (for reward) by the first and second named defendants to hospital again on 1st April, 2014, where she underwent surgery performed by the third named defendant. Her appendix was removed and endometriosis was removed from the ovaries and pelvis and the bowel was resected in two places. Subsequently, the plaintiff became very unwell and was in considerable pain and discomfort. On 5th April, 2014, the plaintiff was attended by the third named defendant who diagnosed the plaintiff with a possible perforation and investigated and considered her for further surgery. She underwent an operative procedure on 5th/6th April, 2014, during which a perforation of the bowel was repaired. Thereafter, the plaintiff developed septicaemia and required treatment in intensive care for approximately a week. She convalesced for six months and was readmitted on 16th September, 2014, in order to conduct a reversal of previous procedures. Thereafter, she became very unwell again and developed pneumonia. She again developed septicaemia and her kidneys ceased to function. She required dialysis for five days and treatment in the intensive care unit for eight days and was treated as an inpatient for almost four weeks. She required further admission to hospital owing to dehydration and was subsequently referred to St. Vincent's Hospital owing to difficulties retaining fluids. It is apparent from all of this that the plaintiff claims to have suffered very severe injuries at the hands of the defendants. Disregarding liability, assuming that all those events occurred, it is also apparent that the plaintiff had what can only be described as a torrid time between the beginning of December 2013 and May 2015, and perhaps even later.

5 The personal injury summons was issued on 2nd December, 2015. At para. 20 thereof it is stated that the summons was issued to avoid any difficulties arising under the Statute of Limitations Act 1957 and it is stated that the pleas therein contained are subject to review and/or amendment ' when a formal medical liability report comes to hand.' At para. 21 thereof it is stated 'details of negligence and breach of duty will be particularised when the said medical liability reports come to hand.'

6 The summons was not served on the defendants at the time. This is because, according to Mr. Mark Tiernan, the solicitor acting on behalf of the plaintiff, expert reports were awaited. Nor were any letters before action served upon the defendants at this time in case that might result in unnecessary adverse consequences for the defendants. In this regard Mr. Tiernan explained in his second affidavit that the defendants might be required to notify their insurers of such correspondence, with resulting adverse consequences that would be unnecessary if the proceedings did not progress.

7 In his affidavit of 20th February, 2018, grounding this application, Mr. Tiernan says that following on the issue of proceedings, the plaintiff procured medical reports on the issue of liability and causation from a consultant urogynaecologist and a colorectal surgeon, and following upon that it was necessary to ask counsel to draft amended proceedings. According to his second affidavit, Mr. Tiernan engaged a gynaecologist on behalf of the plaintiff in January, 2016, but in spite of reminders, did not receive a report until 4th July, 2016. He avers that that report was strongly supportive of the plaintiff's case that she had received substandard care and that as a result she had suffered a significant injury. However, he also avers that the gynaecologist advised obtaining an opinion from a surgeon in respect of 'certain aspects of the treatment that were outside his area of expertise.' A report was then commissioned from a colorectal surgeon in the United Kingdom which I was informed at the hearing of this application was not received until July, 2017.

8 In the meantime, however, an amended personal injuries summons was received from counsel on 24th October, 2016. Initiating letters were then sent to the first to fifth named defendants on 4th May, 2017, enclosing copies of the original personal injuries summons and the proposed amended personal injuries summons. This was the first that any of the defendants knew about these proceedings.

9 On 30th May, 2017, Messrs. Hayes Solicitors on behalf of the third to fifth named defendants wrote to the plaintiff's solicitor asking him for proof of service of the personal injuries summons. They also asked whether or not any application had been made to renew the personal injuries summons. This letter appears to have resulted in a reply dated 13th June, 2017 providing particulars of service, but nothing in relation to an application to renew the personal injuries summons. Accordingly, Hayes Solicitors stated that they were proceeding to enter an appearance under protest on behalf of the third to fifth named defendants. On the same date, Hayes Solicitors purported to enter an appearance 'under protest' and ' without prejudice and solely to contest the jurisdiction of the court.'

10 The solicitors for the first and second named defendants entered an unconditional appearance on 1st September, 2017.

11 In their letter serving the proceedings on the defendants of 4th May, 2017, Messrs. Tiernan & Co., solicitors for the plaintiff, had asked the defendant to provide a letter consenting to the amendment of the proceedings in the terms of the draft amended summons. This request was replied to by Hayes Solicitors in the following terms on 12th...