M. v Health Service Executive (Cervicalcheck Tribunal Act 2019)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 18 July 2022 |
| Neutral Citation | [2022] IEHC 401 |
| Court | High Court |
| Docket Number | 2022 No. 3 PIR |
In the Matter of the Cervicalcheck Tribunal Act 2019
And in the Matter of Part IV of the Civil Liability Act 1961
[2022] IEHC 401
2022 No. 3 PIR
THE HIGH COURT
Fatal injuries – Proposed settlement – Jurisdiction – Parties seeking approval of a proposed settlement – Whether, in the absence of legal proceedings, the court had jurisdiction to approve the proposed settlement on behalf of the minor statutory dependants
Facts: The parties applied to the High Court seeking approval of a proposed settlement of a fatal injuries claim. The approval of the court was sought in circumstances where three of the statutory dependants of the deceased were children under eighteen years of age. As such, they were regarded as “infants” or “minors” in the eyes of the law and lacked legal capacity to enter into a binding settlement agreement. The application presented a novel jurisdictional issue. The fatal injuries claim had been pursued, in the first instance, by the making of a claim to the CervicalCheck Tribunal. The matter had not yet progressed as far as legal proceedings before the High Court. The novel issue which arose was whether, in the absence of such legal proceedings, the High Court nevertheless had jurisdiction to approve the proposed settlement on behalf of the minor statutory dependants.
Held by Simons J that, having regard to the supervisory role which it has under the CervicalCheck Tribunal Act 2019, the High Court enjoys an implicit jurisdiction to rule upon a proposed settlement of a fatal injuries claim in circumstances where there are vulnerable, dissenting or absent family members involved. Simons J noted that the existence of this jurisdiction is recognised under Order 22, rule 10(10) of the Rules of the Superior Courts.
Simons J held that court approval of the proposed settlement was only required insofar as it affected the interests of the absent son and the minor grandchildren. He was satisfied that the respective interests of those statutory dependants were properly protected by the settlement agreement. He approved the settlement agreement. He held that an order would be made directing that a sum of €4,000 each was to be paid into court for the benefit of the three minor grandchildren to be held on their behalf until they reach the age of eighteen years. He noted that it was a term of the settlement agreement that the claimants were to recover their legal costs as against the third respondent, Clinical Pathology Laboratories Inc. He held that those costs were to include any reserved and discovery costs; the costs of the mediation (to include a fee for both junior and senior counsel); and the costs of the application to have the settlement agreement approved by the court. He held that the quantum of the costs was to be adjudicated under Part 10 of the Legal Services Regulation Act 2015 in default of agreement.
Application granted.
Patrick McCullough (with Pearse Sreenan, SC) for the claimants instructed by Brian Long Solicitor (Cork)
JUDGMENT of Mr. Justice Garrett Simons delivered on 18 July 2022
This matter comes before the High Court by way of an application to approve a proposed settlement of a fatal injuries claim. The approval of the court has been sought in circumstances where three of the statutory dependants of the deceased are children under eighteen years of age. As such, they are regarded as “ infants” or “ minors” in the eyes of the law and lack legal capacity to enter into a binding settlement agreement.
The application presents a novel jurisdictional issue as follows. The fatal injuries claim has been pursued, in the first instance, by the making of a claim to the CervicalCheck Tribunal. Put otherwise, the matter has not, yet, progressed as far as legal proceedings before the High Court. The novel issue which arises is whether, in the absence of such legal proceedings, the High Court nevertheless has jurisdiction to approve the proposed settlement on behalf of the minor statutory dependants.
This application arises out of the tragic death of M.M. (“ the deceased”). The deceased had been diagnosed with cervical carcinoma in January 2014. The illness was at an advanced stage, and it was too late to provide much more than palliative care. At the request of her family, the deceased was discharged from hospital in June 2014 and had been cared for in her own home by her two daughters. The deceased died in October 2014.
The deceased had previously undergone a smear test in September 2010 provided as part of a national cervical screening service (“ CervicalCheck”). The family of the deceased contend that the manner in which the results of this smear test were reviewed was negligent, with the consequence that there was a failure to detect and diagnose a high-grade abnormal cell reading on the cytology slides taken from the deceased.
Two daughters of the deceased have brought a claim for damages arising out of what they say was the wrongful death of their mother. This claim has been brought on behalf of all of the statutory dependants of the deceased.
Generally, a claim for damages arising out of the wrongful death of a family member is pursued by way of legal proceedings under Part IV of the Civil Liability Act 1961. There is, however, an alternative procedural route open in the case of a claim seeking damages for negligence, breach of duty, breach of statutory duty or breach of contract arising from any act or omission concerning CervicalCheck. More specifically, such a claim may be submitted, in the first instance, to a dedicated statutory tribunal (“ the CervicalCheck Tribunal”) which has been established under the CervicalCheck Tribunal Act 2019 (“ the Act”). It should be emphasised that a claimant is not obliged to pursue this procedural route: the CervicalCheck Tribunal's jurisdiction is consensual not mandatory. Section 13 of the Act provides that the CervicalCheck Tribunal shall hear and determine only claims in respect of which there is agreement in writing from each of the relevant parties to submit the claim for determination by the Tribunal.
Section 14 of the Act provides that the CervicalCheck Tribunal shall hear and determine claims in the same manner as the High Court hears and determines claims for personal injuries arising from alleged negligence, breach of duty, breach of statutory duty or breach of contract. It follows, therefore, that the provisions of Part IV of the Civil Liability Act 1961, which govern fatal injuries claims, are to be applied by analogy by the CervicalCheck Tribunal. Relevantly, the Civil Liability Act 1961 provides that any claim for fatal injuries must be for the benefit of all of the statutory dependants (as defined) and that the damages recoverable for mental distress are limited to an aggregate amount of €35,000. This figure is referred to in the case law as “ the solatium”. There is no statutory limit on claims for loss of financial dependency.
The claimants submitted a claim to the CervicalCheck Tribunal in April 2021. Following a mediation in November 2021, a settlement agreement was reached between the claimants and the third named respondent, Clinical Pathology Laboratories. The claim is to be struck out against the other respondents with no order.
The greater part of the compensation payable under the settlement agreement is in respect of the loss of financial dependency suffered by the children of the deceased. In addition, an amount of €35,000 is to be paid in respect of the claim for damages for mental distress resulting from the death of the deceased. This represents the maximum amount recoverable under statute. The proposed division of this figure of €35,000 as between the children and grandchildren of the deceased is discussed under the next heading below. Before turning to that task, however,...
To continue reading
Request your trial