Lyndsey Cooney (on Behalf of the Statutory Dependants of Dualtagh Donnelly) v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 20 December 2021
• Neutral Citation: [2021] IEHC 754
• Docket Number: 2017 No. 9535 P
• Year: 2021
• Court: High Court

In the Matter of Part IV of the Civil Liability Act 1961

Between

Lyndsey Cooney (On Behalf of the Statutory Dependants of Dualtagh Donnelly)

Plaintiff

and

Health Service Executive

Defendant

[2021] IEHC 754

2017 No. 9535 P

THE HIGH COURT

Appearances

David Leonard for the representative plaintiff instructed by MacGuill & Co (Dundalk)

JUDGMENT of Mr. Justice Garrett Simons delivered on 20 December 2021

INTRODUCTION

1 This matter comes before the High Court by way of an application to approve a proposed settlement of a fatal injuries claim under Part IV of the Civil Liability Act 1961.

2 In most instances, the function of the court on an application to approve will be twofold: first, to ensure that the interests of the minor statutory dependants are protected under the proposed settlement; and, secondly, to rule on the division of the damages for mental distress. The present case is somewhat unusual in that one of the adult statutory dependants (the mother of the deceased) has concerns as to the proposed settlement and is not consenting to same. It is necessary, therefore, to consider whether the proposed settlement properly protects the mother's interests too.

THE CLAIM FOR DAMAGES

3 These proceedings arise out of the untimely death of Mr. Dualtagh Donnelly (“ the deceased”) at the age of twenty-five years. The death occurred at the house that the deceased shared with his partner and children. The deceased had returned home in an intoxicated state in the early hours of the morning of 26 October 2015. An incident then ensued whereby the deceased punched his arm through a glass panel in a door in the house, and thereby sustained a laceration to his right radial artery. This resulted in significant and rapid blood loss, and ultimately led to cardiac arrest and death.

4 The wound is described in the autopsy report as a large V-shaped wound which went deeply in the cubital soft tissue and measured 15 cm x 10 cm. The free cut end of the radial artery was visible in the wound. The autopsy report also indicates that the deceased had high levels of alcohol and illicit drugs (including cocaine) in his system. The deceased's blood alcohol levels are recorded as 217 mg/dl.

5 The within proceedings have been taken in the name of the deceased's partner, Lyndsey Cooney, on her own behalf and on behalf of the other statutory dependants. Ms. Cooney and Mr. Donnelly had lived together as a couple in an intimate and committed relationship prior to his death. The couple had three children together, the last of whom was born posthumously. Ms. Cooney meets the statutory definition of a “ cohabitant”, and, in consequence, comes within the statutory definition of “ dependant”. For ease of exposition, Ms. Cooney will be referred to in this judgment as “ the representative plaintiff” or “ the deceased's partner”.

6 The claim for damages relates to the actions of the national ambulance service in response to an emergency call. The deceased's partner had telephoned for an ambulance at 03:06 hours. Two units were allocated to the call, a rapid response vehicle and an ambulance. The former arrived at the scene of the incident at 03:29 hours, the latter at 03:45 hours. The deceased had gone into respiratory arrest at approximately 03:41 hours, and into cardiac arrest at 03:47 hours.

7 Two broad complaints are made in the proceedings. First, it is alleged that there was a failure to dispatch an alternative unit which might have reached the scene faster. Secondly, criticism is made of the treatment provided to the deceased by the paramedics.

8 It is apparent from the various expert reports, which have been exhibited as part of the application to approve the proposed settlement, that there would be significant difficulties in making good either of these complaints at the trial of the action. The plea that an alternative unit could have been dispatched is premised on the false assumption that a particular unit, described as an officer car, had been available for dispatch. In fact, the officer was not on roster at the relevant time, and this unit had been properly disregarded in allocating units to the emergency call. The representative plaintiff's own expert has opined that, in the absence of an alternative unit being available, the operations centre had adopted an appropriate course of action in allocating the units that it did. The expert further states that whilst the response time involved was not desirable, he could not say that no other ambulance service would have acted as the national ambulance service did. On the basis of the expert reports before the court, there is no likelihood of a finding of negligence being made against the Health Service Executive in this regard.

9 The second broad complaint relates to the actions taken by the paramedics. The two experts retained on behalf of the representative plaintiff make some minor criticisms of the treatment provided at the scene. In particular, it is suggested that the deceased should have been immediately placed on the floor, rather than permitted to remain in a seated position.

10 It has to be said, however, that there appears to be some difference of opinion between the two experts on other issues. The first expert suggests that the administration of crystalloid fluid would have been unlikely to improve the outcome; the second, that a bolus of crystalloid should have been administered to obtain a systolic blood pressure.

11 There also appears to be some disagreement as to whether an attempt should have been made to transfer the deceased to hospital in the first vehicle which arrived on the scene. The first expert opines that it would not have been appropriate to have attempted a hospital transfer in the rapid response vehicle, and that no competent ambulance clinician would have attempted to do so. It is also accepted that it was appropriate to attempt resuscitation at the scene when the ambulance arrived. The second expert appears to suggest that a “ scoop and run” might have been attempted.

12 The second expert has outlined the difficulties which can arise where a patient has imbibed alcohol and used illicit drugs. The agitation and non-compliance that results from both the shock of the primary trauma and the use of agents such as cocaine and alcohol can potentially result in harm to both patient and healthcare professional.

13 The court has also been provided with the reports of the experts retained on behalf of the Health Service Executive. The point is made in these reports that the time between the arrival of the rapid response vehicle and the respiratory arrest was 12 minutes, with the cardiac arrest ensuing within 6 minutes thereafter. Assessing the patient, obtaining a history and vital signs, and dressing the wound, would have occupied most of this time. There was little window for additional treatment to have been given.

14 The first expert on behalf of the Health Service Executive has opined that—in the absence of immediately available massive blood and blood products transfusion and/or surgical intervention—any treatment after cardiac arrest had ensued was likely to be futile. Tranexamic acid, intravenous crystalloid fluid, oxygen, chest compressions, naloxone and adrenaline were unlikely to alter the outcome.

15 The only effective treatment for the injuries, other than prevention, was likely to have been earlier haemorrhage control. The advice given by the emergency call taker was directed at trying to achieve that prior to the arrival of the ambulance crews. This was made more difficult due to the distressed nature of the callers and also the deceased's intoxication with alcohol and cocaine.

16 The expert also opines that given that there was no active bleeding at the time, there was no immediate indication to lie the deceased down.

17 The second expert retained on behalf of the Health Service Executive opines that in the absence of un-crossmatched blood and huge IV access, of the type to be found in the resuscitation bay of a large emergency department, it is unlikely that the deceased would have survived. The point is also made that the average journey time to the nearest hospital in Drogheda would have been at least 20 minutes. Accordingly, even if the ambulance had arrived 10 minutes after the initial injury; taking into account the 20 minute drive to Drogheda, it is unlikely that the deceased would have survived.

PROPOSED SETTLEMENT

18 Under the terms of the proposed settlement, a sum of €125,000 would be paid by the defendant, the Health Service Executive, in full and final settlement of the proceedings. It should be emphasised that the offer of settlement has been made by the Health Service Executive without any admission of liability. Indeed, the HSE had made this a precondition to its entry into settlement negotiations.

19 It should also be explained that the proceedings include a claim for nervous shock on the part of Ms. Cooney personally, in addition to the fatal injuries claim on behalf of the statutory dependants. The figure of €125,000 is intended to satisfy both claims.

20 For the purpose of the application to approve the settlement, Ms. Cooney is prepared to proceed on the basis that the settlement relates to the fatal injuries claim simpliciter, and that the offer includes the maximum sum recoverable in respect of mental distress (€35,000). It is suggested that €30,000 be apportioned to the deceased's three children, with the remaining €5,000 being apportioned to the deceased's mother and siblings.

21 Separately, it is intended to reimburse the family, out of the overall sum of €125,000, for the funeral costs incurred on their part.

POSITION OF THE DECEASED'S MOTHER

22 The deceased was survived by his mother, Oonagh Donnelly. Mrs. Donnelly had indicated in correspondence with the representative plaintiff's solicitor that she would not be consenting to...