McCarthy v Pillay

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 24 March 2003
• Neutral Citation: [2003] IESC 21
• Court: Supreme Court
• Docket Number: [S.C. No. 49 of 2001]
• Date: 24 March 2003

MCCARTHY v. PILLAY & PILLAYS GENERAL HOSPITAL LTD T/A CITY GENERAL HOSPITAL

Between:-

ORLA McCARTHY

Plaintiff

and

PALLANY PILLAY

and

PILLAY'S GENERAL HOSPITAL LIMITED t/a CITY GENERAL HOSPITAL

Defendants

and

ST. VINCENT'S HOSPITAL AND MEDICAL CENTRE OF NEW YORK

Third Party

[2003] IESC 21

Denham J.

Hardiman J.

McCracken J.

2001/49

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Third party notice

Setting aside - Compliance with rules - Whether Ireland the forum conveniens - Rules of the Superior Courts, 1986, SI 15/1986, Order 11, rules 1,2 and 5 (49/2001 - Supreme Court - 24/03/2003)

McCarthy v Pillay - [2003] 1 IR 592 - [2003] 2 ILRM 284

The plaintiff commenced proceedings against the defendants, a doctor and hospital in Cork. The defendants applied to join the third party which was a hospital in New York. The third party appealed against the order of the High Court refusing to set aside service of the third party notice on the grounds that the defendants had failed to comply with the mandatory requirements of Order 11 of the Rules of the Superior Courts and that Ireland was not the appropriate forum for determination of the defendants' claim against the third party.

Held by the Supreme Court (Denham, Hardiman J. and McCracken JJ.) in dismissing the appeal and affirming the order of the High Court that the defendants had complied with the rules. It would be advantageous to all parties to have all the issues litigated in one forum and therefore Ireland was the forum conveniens.

Citations:

RSC O.11 r2

RSC O.11 r5

RSC O.11 r1(H)

RSC O.11

WADDELL V NORTLAND & ANOR 1966 NI 85

WITTED V GALBRAITH 1893 1 QB 431

ANALOG DEVICES DV V ZURICH INSURANCE CO 2002 1 IR 272

SHORTT V IRELAND 1996 2 IR 188

RSC O.11 r11

TROMSO SPAREBANK V BYRNE UNREP SUPREME 15.12.1989 1989/9/2532

GREHAN V MEDICAL INCORPORATED 1986 IR 528

SPILIADA MARITIME CORPORATION V CANSULEX LTD 1987 AC 460

INTERMETAL GROUP LTD V WORSLADE TRADING LTD 1998 2 IR 1

FOREIGN TRIBUNALS EVIDENCE ACT 1856

RSC O.39

1 JUDGMENT of Mr. Justice Hardiman delivered the 24th day of March, 2003.

2 This is the third party's appeal against the order of the High Court (Murphy J.) perfected the 7 ^th day of February, 2001. By that order the High Court refused to set aside the service of the Third Party Notice on the grounds that the defendants failed to comply with the mandatory requirements of Order 11 Rule 2 and Rule 5 of the Rules of the Superior Courts. The High Court also refused to set aside the service of the Third Party Notice on the basis that the Third Party was not a necessary or proper party to the proceedings within the meaning of Order 11 Rule 1(h) of the Rules of the Superior Courts. Finally, the High Court refused to decline jurisdiction over the Third Party issue between the defendant and Third Party in favour of the Courts of New York. The High Court had been urged to do this on the ground that Ireland was a forum non conveniens for the determination of the Third Party claim.

Factual background.

3 The plaintiff commenced proceedings against the defendants, a doctor and a hospital in Cork, on the 14 ^th July, 1995. These proceedings related to allegedly negligent treatment of herself and her late infant son, Dylan McCarthy, at and about the time of his birth in 1992. The first-named defendant is an obstetrician and gynaecologist practising in Cork and the second-named defendant is the hospital in Cork where he practices. The plaintiff's claim that the infant" death (he was still born) was due to Rh/D Iso-immunisation.

4 According to the particulars in the plaintiff's Statement of Claim the substantive case made against the defendants is that they failed to take any or adequate history from the plaintiff; failed to examine her adequately and in particular failed to investigate her blood type and antibody status; failed to attend to her symptoms during the pregnancy; failed adequately to monitor the foetal heart; failed to carry out a caesarean section under appropriate antibiotic cover and failed to investigate her complaint that she had noticed reduced foetal movement.

5 It transpires that, in the year 1987, the plaintiff was living in New York. She became pregnant and attended the Third Party hospital there. She received ante-natal care and subsequently gave birth to a healthy baby boy.

6 In the course of her attendance at the Third Party's hospital she was presented with a document, described by the Third Party as an antenatal appointment card. From a perusal of this document it is clear that its contents is not limited to dates of medical appointments. It contains space for medical notes including "significant findings or problems", space for personal details of the patient, space for a history of the patient extending to whether ten specific diseases are or have been suffered from. Vitally, it contains space for the recording of the patient's blood type and rhesus status. The blood type is given as A and rhesus status as positive.

7 In the defendants defence delivered the 15 ^th January, 1998 it is alleged at paragraph 4:-

"When the plaintiff initially attended the first-named defendant she specifically requested that she not have a blood test taken as she had a great fear of needles and further specifically for the reason that the relevant information was set out in her prenatal book which she then and there produced and handed to the first-named defendant".

8 Paragraph 8 of the defence states:

"If (which is denied) the plaintiff did suffer the alleged or any personal injuries, these alleged injuries and/or death of Dylan McCarthy and/or the deafness suffered by the plaintiff's third child Piers were wholly caused by, or in the alternative, were contributed to by the negligence of some other third party".

9 Contributory negligence is also alleged against the plaintiff and described as follows:-

10 a "(a) Providing the first-named defendant with an antenatal book which contained incorrect information, including incorrect details as to the plaintiff's blood group;

11 (b) Requesting the first-named defendant not to have her blood tested;

12 (c) Furnishing incorrect information to the first-named defendant concerning her blood group".

Procedural background.

13 On the 2 ^nd December, 1998 Ms. Fiona Ruttle, Solicitor, swore an affidavit in support of the defendant's application to join the Third Party. She traversed some of the ground indicated in the extracts from the defence, quoted above. She stated that the defendants were presented with the Third Party's antenatal appointment book by the plaintiff and that they "relied on the information communicated by way of the said antenatal book and verbally to them by the plaintiff". She said that it subsequently emerged that the information contained in the book was "inaccurate and the true position was that the plaintiff's blood group was A Rh/D negative". She continued:-

"This inaccurate recording and reporting of the plaintiff's blood group had the most serious implications for the ensuing treatment of the plaintiff by the defendants. In the event, the infant Dylan McCarthy was delivered still born and his death was found to have been caused by an unsuspected and undetected hydrops fetalis due to severe haemolytic disease caused by the presence of antibodies in the mother's blood".

14 She went on to say that the production of these antibodies could have been inhibited by administering anti-D immunoglobulin to the mother. This, she says, should be done immediately following the delivery of the baby to ensure that no complication arises in any future pregnancy. It is unclear, she says, whether the Third Party did this or not.

15 Based on the foregoing Ms. Ruttle alleged that the Third Party is a concurrent wrongdoer who caused or contributed to the death of the infant Dylan and to the injury to the plaintiff. Accordingly, she says, the defendants are entitled to a contribution or indemnity in respect of their liability, if any.

Grounds of the present application.

16 The Third Party relies on two quite separate grounds in support of their application to set aside the service of the Third Party Notice. These are:-

17 a "(a) The requirements of Order 11 of the Rules of the Superior Courts have not been complied with,

18 (b) Alternatively—under the forum non conveniensdoctrine—Ireland is not the appropriate forum for the determination of the defendants claim against the Third Party.

Order 11.

19 The first relevant provision of Order 11 is to be found at Order 11 Rule 1(h) which requires a defendant seeking to join the Third Party outside the jurisdiction to establish that such person "is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction".

20 Both before the High Court and on the hearing of this appeal, the Third Party conceded that it would have been properly joined as a third party if it were resident within the jurisdiction.

21 In Waddell v. Nortland and Anor. [1966] N.I. 85 at 91, Lord McDermott said:-

"...Had both defendants been within the jurisdiction I should have thought that the propriety of joining them both in these claims could not have been questioned. In Witted v. Galbraith, Lindley L.J. said with reference to the corresponding English Rule "It is said that the present case comes within that rule. There is a very easy method of testing whether this is true. Supposing that both the defendant firms were resident within the jurisdiction, would they both have been joined in the action?".

It may not be a universal test but it seems to me a reasonable and proper test in this sort of case. I do not forget the words "properly brought" are part of the protection accorded to foreigners and that leave to serve the jurisdiction is not granted lightly. But here—and I repeat...