MaGuire v O'Callaghan

JudgeMr. Justice Noonan
Judgment Date28 June 2019
Neutral Citation[2019] IEHC 494
CourtHigh Court
Docket Number[2017/3446 P.]
Date28 June 2019

[2019] IEHC 494


Noonan J.

[2017/3446 P.]


Tort – Negligence – Medical negligence – Death of medical practitioner – Whether claim statute barred

Facts: The plaintiff had attended the late husband of the defendant in his capacity as a medical practitioner. It was alleged he had misdiagnosed her throat cancer. He passed away before the mistake was realised, and the plaintiff sought damages for medical negligence against the defendant as the executrix of the late husband. A preliminary matter arose as to whether the claim was barred under the Civil Liability Act 1961.

Held that the defendant’s application would be granted. S 9 of the Civil Liability Act had been held to be constitutional, and prima facie served to make the claim statute barred. A short hearing to decide this matter as a preliminary issue would be appropriate.

JUDGMENT of Mr. Justice Noonan delivered on the 28th day of June, 2019

In the motion before the court, the defendant seeks the trial of a preliminary issue as to whether the plaintiff's claim is statute barred.


These are medical negligence proceedings brought by the plaintiff against the defendant in her capacity as the executrix of her late husband, Dr. Peter O'Callaghan who died on 30th September, 2013.


The relevant chronology is as follows: -

11th October, 1997 – the plaintiff's date of birth.

5th March, 2013 – the plaintiff, who was then aged 15 years, attended Dr. O'Callaghan complaining of a lump in her neck. It is alleged that Dr. O'Callaghan indicated that it was just tissue and nothing to worry about and referred her to Temple Street Hospital for a blood test. She underwent the blood test but heard nothing further.

30th September, 2013 – Dr. O'Callaghan died.

25th April, 2015 - the plaintiff was seen by another general practitioner with the same complaint who referred her for an urgent appointment at the Mater Hospital where the plaintiff had a biopsy taken which led to a diagnosis of papillary thyroid cancer which had spread to her lymph nodes. She was immediately admitted for urgent surgery and thereafter radiotherapy.

30th September, 2015 – this was the second anniversary of Dr. O'Callaghan's death.

11th October, 2015 – the plaintiff attained her majority.

Summer 2016 – the date alleged by the plaintiff to constitute her date of knowledge for the purposes of the Statute of Limitations (Amendment) Act 1991.

13th April, 2017 – a personal injuries summons was issued.

The Civil Liability Act 1961

Sections 8 & 9 are relevant to the issues arising in this application and provide as follows: -

‘8(1) on the death of a person on or after the date of the passing of this act all causes of action (other than accepted causes of action) subsisting against him shall survive against his estate.

(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.

9(1) In this section “the relevant period” means the period of limitation prescribed by the statute of limitations or any other limitation enactment.

(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either –

(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or

(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.’


This application is brought pursuant to O.25 of the Rules of the Superior Courts:

‘1. Any parties shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

2. If, in the opinion of the court, the decision of such points of law substantially disposes of the whole action, or if any distinct cause of action, ground of defence, set off, counter claim, or apply therein, the court may thereupon dismiss the action or make such order therein as may just.’

The Arguments

The defendant contends that since these proceedings were issued more than two years after Dr. O'Callaghan's death, they are statute barred by s.9 of the 1961 Act. The constitutionality of that section has previously been upheld by the Supreme Court in Moynihan v. Greensmyth [1977] I.R. 55 and therefore on its face, the plaintiff's case is prima facie statute barred. This is a discrete issue of law which can be conveniently tried by the court as a preliminary issue without the defendant being exposed to the cost and inconvenience of a much lengthier medical negligence trial.


In response, the plaintiff contends that s.9(2)(b) of the 1961 Act is unconstitutional and that such constitutional issue can only be tried after a trial of the facts on oral evidence. Alternatively, the plaintiff contends that the defendant, who is indemnified by an insurance company, is not entitled to rely on s.9(2)(b) as it would be unconscionable and an abuse of process for the defendant's insurance company to so rely in circumstances where there is in truth no contest between the plaintiff and the estate of the defendant. Rather the contest is between the plaintiff and an insurance company and therefore the issue sought to be agitated on foot of this motion is moot.


A further argument raised by the plaintiff is that a constitutional interpretation of the section requires it to be read as subject to the date of knowledge provisions contained in the Statute of Limitations (Amendment) Act 1991. Finally, the plaintiff pleads that if the section is constitutionally valid, it is incompatible with the State's obligations under the European Convention on Human Rights. However, the parties are agreed that this can only be considered after the exhaustion of other remedies and does not fall to be dealt with as part of the preliminary issue.


In Moynihan v. Greensmyth, the plaintiff was injured in a road traffic accident that occurred on 6th August, 1966. She was then aged 16 years and was a passenger in a car driven by William Greensmyth which collided with a bridge. Mr. Greensmyth was killed in the accident and the defendant was his personal representative. Proceedings were issued by way of plenary summons on 5th August, 1969. The plaintiff attained her majority on 16th April, 1971, the age of majority then being 21 years. The defendant pleaded that the claim was barred by s.9(2)(b) of the 1961 Act, having been instituted more than two years after Mr. Greensmyth's death.


The plaintiff replied that s.9 was invalid having regard to the provisions of article 40.3 of the Constitution. Both the High Court and the Supreme Court upheld the validity of the section. It is important to note that the case was determined by way of trial on the preliminary point of law arising in advance of the plenary hearing. In argument before the Supreme Court, the plaintiff contended that as a person suffering from a disability at the date of the accident, s.9(2)(b) constituted an unjust attack on her property rights. This argument was rejected by the Supreme Court whose judgment was delivered by O'Higgins, C.J. who said (at p.72): -

‘When it was decided to provide generally for the survival of causes of action, a general limitation period of two years was provided in the impugned provisions of s.9 ss.2(b) of the Civil Liability Act 1961. It was conceded in argument that this could not be regarded as an unjust attack on those not suffering from incapacity and that, in such circumstances, the period was reasonable and fair. In relation to those (such as the plaintiff) who at the time of the accrual of the cause of action or under twenty-one years of age, is a two-year period from the death of the wrongdoer so unreasonably short as to constitute an unjust attack on their rights? Bearing in mind the State's duty to others – in particular those who represent the estate of the deceased, and beneficiaries – some reasonable limitation and actions against the estate was obviously required. If the period of infancy were to form part of the period of limitation, as was formerly the case, then the danger of stale claims being brought would be very real and could constitute a serious threat to the rights of beneficiaries of the estate of a deceased. The alternative was to apply a period of limitation which would have general application. It had to be either one or the other; and it does not appear that any compromise was possible.’


In the course of his argument, counsel for the plaintiff contended that, while not suggesting outright that it was wrongly decided, in...

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