Mangan v Dockery, Mangan v Dockery

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date04 November 2020
Neutral Citation[2020] IESC 67
Date04 November 2020
CourtSupreme Court
Docket NumberSupreme Court Record No. 104/2019 & 106/2019 High Court No. 2008/4863P
BETWEEN
ANDREW MANGAN (A PERSON OF UNSOUND MIND OR NOT SO FOUND) SUING BY HIS MOTHER AND NEXT FRIEND, LORRAINE MANGAN
Plaintiff/Appellant
AND
JULIAN DOCKERAY
First Defendant
AND (BY ORDER)
BRIAN DENHAM
Second Defendant/Second Respondent
AND
THE CONGREGATION OF THE LITTLE COMPANY OF MARY TRADING AS MOUNT CARMEL HOSPITAL
Third Defendant/Third Respondent

[2020] IESC 67

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

Baker J.

Supreme Court Record No. 104/2019 & 106/2019

Court of Appeal Record No. 210/2018 & 211/2018

High Court No. 2008/4863P

THE SUPREME COURT

Cause of action – Pleadings – Delay – Appellant seeking damages – Whether the appellant’s claim disclosed a reasonable cause of action

Facts: The plaintiff/appellant, Mr Mangan, was born in Mount Carmel Hospital in January, 1995. He sought damages against the defendants for the catastrophic injuries which he suffered in and around the time of his birth and its immediate aftermath. The first defendant, Dr Dockeray, was a consultant obstetrician and gynaecologist who performed a caesarean section on the appellant’s mother as well as attending on her at the time of birth. The second defendant/respondent, Dr Denham, was a consultant paediatrician who provided the appellant with neonatal care at Mount Carmel Hospital, Dublin 14. The third defendant/respondent, the Congregation of the Little Company of Mary, was responsible for the operation and management of that hospital. Dr Dockeray was the only defendant named in the original personal injuries summons but after obtaining expert evidence as to his position, he applied to join the second and third defendants as third parties; this in turn prompted the plaintiff to seek to have them joined as co-defendants. Barr J acceded to this application on the 21st November, 2016 after which, each of them issued similar motions seeking to have the plaintiff’s claim against them dismissed. Those motions were heard by Binchy J, then of the High Court, who having found in favour of the second and third defendants struck out the claim for failing to disclose a reasonable cause of action pursuant to O. 19 r. 28 of the Rules of the Superior Courts (RSC). This decision was appealed unsuccessfully by the plaintiff, to the Court of Appeal, who agreed with the trial judge’s assessment. The plaintiff then made his application for leave to appeal to the Supreme Court on the 4th June, 2019. In a determination dated the 4th October, 2019, leave to appeal from the judgment and order of the Court of Appeal was granted, on two specific issues: (i) Where a plaintiff in a personal injuries action joins an additional defendant and pleads that while they do not have any evidence to establish negligence on the part of that defendant, they believe the original defendant intends to defend the claim on the basis of expert evidence supporting the proposition that the additional defendant’s negligence caused the plaintiff’s injuries, does the plaintiff’s pleading fail to disclose a cause of action and is it therefore captured by the terms of O. 19 r. 28 RSC? (ii) In the situation as just described, wherein the plaintiff does not have expert evidence of their own to support any claim of wrongdoing as against the defendant(s) they wish to join and the expert evidence of the plaintiff supports the contention that it was the negligence of the original defendant who caused the injuries, is it a just application of the Court’s inherent jurisdiction to strike out a claim as an abuse of process or one which is bound to fail even though such could leave the plaintiff without a claim, if the original defendant is successful on defending the action in the manner described? On the 31st October 2019, the Court gave an additional direction, following an application of both the second and third defendants, that submissions could be made on the question of whether the plaintiff had been guilty of inordinate and inexcusable delay in prosecuting his claim against them.

Held by McKechnie J that: (i) the pleadings did not fail to disclose a cause of action and therefore O. 19, r. 28 RSC was not appropriate; (ii) it was not a just application of the Court’s inherent jurisdiction in the circumstances to strike out the plaintiff’s claim; (iii) the delay in this case was not such as to justify terminating the proceedings without a hearing on its merits.

McKechnie J held that the plaintiff’s appeal would be allowed.

Appeal allowed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 4 th day of November, 2020
Introduction
1

Andrew Mangan, the plaintiff and now appellant, was born in Mount Carmel Hospital in January, 1995. He suffers from cerebral palsy, cortical blindness and quadriplegia and is entirely dependent on others in every aspect for his day-to-day living. In very general terms, the plaintiff in these proceedings, seeks damages against the defendants for the catastrophic injuries which he suffered in and around the time of his birth and its immediate aftermath. To understand the factual and procedural background which has led to this appeal, it is desirable to provide a brief explanation of the role which each party has played in these events.

2

The first defendant, Dr. Julian Dockeray, was a consultant obstetrician and gynaecologist who performed a caesarean section on the appellant's mother as well as attending on her at the time of birth. He is now retired and has taken no active role in these proceedings. The second defendant/respondent to this appeal, Dr. Brian Denham, is a consultant paediatrician who provided the appellant with neonatal care at Mount Carmel Hospital. Dublin 14, and the third defendant/respondent, being a religious order which, at the time was responsible for the operation and management of that hospital. In April, 2006, it disposed of its interest in the hospital which eventually closed in 2014.

3

Dr. Dockeray was the only defendant named in the original personal injuries summons but after obtaining expert evidence as to his position, he applied to join the second and third defendants as third parties: this in turn prompted the plaintiff to seek to have them joined as co-defendants. Barr J. acceded to this application on the 21 st November, 2016 after which, each of them issued similar motions seeking to have the plaintiff's claim against them dismissed. These motions were heard by Binchy J., then of the High Court, who having found in favour of the second and third defendants struck out the claim for failing to disclose a reasonable cause of action pursuant to O. 19 r. 28 of the Rules of the Superior Courts (“RSC”). This decision was appealed unsuccessfully by the plaintiff, to the Court of Appeal, who agreed with the trial judge's assessment. The plaintiff then made his application for leave to appeal to this Court on the 4 th June, 2019. The procedural history will be explained in fuller detail below. For ease of understanding and continuity, I will hereinafter refer to Mr. Mangan as the plaintiff and to the remaining parties as the first, second and third defendants.

4

In a determination dated the 4 th October, 2019 ([2019] IESCDET 210), leave to appeal from the judgment and order of the Court of Appeal was granted, on two specific issues, which were later added to during the currency of case management on the 31 st October, 2019: the precise wording of the permitted grounds appears at para. 30 below.

Factual Background
5

Ms. Mangan was admitted to Mount Carmel Hospital, on the 28 th December, 1994, due to pre-term rupture of the membranes. She had been in and out of hospital several times in the weeks immediately preceding due to abnormal bleeding. Though her estimated delivery date was the 19 th March, 1995, her son was born at just over 30 weeks gestation on the 11 th January, 1995, at 00:39 hours, after she underwent an emergency caesarean section, which was considered necessary by Dr. Dockeray and which was duly performed by him. Immediately after birth the new-born received suction and was then transferred to the Special Care Baby Unit at the hospital under the management of Dr. Denham, the second named defendant, where he received ventilation between the 11 th and 13 th of January. He stayed there until he was discharged home on the 20 th January, 1995.

6

Following his discharge, Andrew remained under Dr. Denham's care who on assessment at age six months, expressed concern about his vision; any other developmental delay was thought to be as a result of his premature birth. However, at nine-months, following a referral by Dr. Denham, the plaintiff was seen by a Dr. Monaghan and was diagnosed with cerebral palsy and shortly after this, at ten-months old, he began suffering seizures and was diagnosed with epilepsy. Andrew received physiotherapy with Enable Ireland in Sandymount, Dublin 4, where he has attended school for most of his life. Over the years, his epileptic seizures have responded with varying degrees of success to different medicines prescribed for him. His medical history includes frequent respiratory infections, secretions, copious coughing and numerous other issues. He underwent spinal surgery in February, 2012 for severe scoliosis and has also received Botox injections in both upper limbs to help with spasticity. His visual impairment is significant and his ability to speak is confined to the use of single words and phrases, though his non-verbal communication is described as good by his family. This brief overview of the plaintiff's medical history serves to illustrate the severity of his condition, which is considered to be lifelong without any prospect of recovery or even improvement. He has 24-hour nursing needs which are provided by his family.

7

On the basis of a report prepared by Dr. Roger Clements, consultant obstetrician and gynaecologist, a personal injuries summons was issued by the plaintiff's solicitor, Ms. Agatha...

To continue reading

Request your trial
41 cases
  • Cave Projects Ltd v Kelly
    • Ireland
    • Court of Appeal (Ireland)
    • 28 October 2022
    ...agreeing) referred to the “ terminal prejudice” to the plaintiff whose claim is dismissed (at para 46). Similarly, in Mangan v Dockeray [2020] IESC 67, McKechnie J (Clarke CJ, MacMenamin, Dunne and Baker JJ agreeing) referred to the “ enormous” prejudice to the plaintiff in those proceeding......
  • C v John Casey
    • Ireland
    • Court of Appeal (Ireland)
    • 2 February 2022
    ...credible evidence to support the plaintiff's case before such an action is commenced’. 24 . The decision in Mangan v. Dockeray and anor. [2020] IESC 67 confirms that the mere fact that a plaintiff is bringing an action for professional negligence does not in itself require that, in order to......
  • Peter Pringle v Ireland and The Attorney General
    • Ireland
    • Court of Appeal (Ireland)
    • 18 May 2022
    ...Equality and Law Reform [2015] IECA 41, which he says highlights the nature and complexity of individual cases, and Mangan v Dockeray [2020] IESC 67 where the balance of justice test is carefully considered, and a summary of principles set out by McKechnie J. at paragraphs 109–110 of his ju......
  • Sheila Murphy v Health Service Executive
    • Ireland
    • Court of Appeal (Ireland)
    • 15 January 2021
    ...requirement is sufficient to protect professional reputation. In this regard counsel relied on the decision in Mangan v Dockeray and Ors [2020] IESC 67. And there McKechnie J. answered the question “is such a report essential?” with the following:- “97. It seems to me that the most appropri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT