McDonagh v McDonagh

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 06 December 2016
• Neutral Citation: [2016] IEHC 702
• Court: High Court
• Docket Number: [2015 No. 979P]
• Date: 06 December 2016

[2016] IEHC 702

THE HIGH COURT

Barrett J.

[2015 No. 979P]

BETWEEN

MARTIN McDONAGH

PLAINTIFF

– AND –

LENA McDONAGH

DEFENDANT

– AND –

THE HEALTH SERVICES EXECUTIVE (HSE)

AND

PATRICK O'MEARA

AND

JOHN RICE

THIRD PARTIES

Tort – Medical Negligence – Practice & Procedures – Service of Notice to third parties – O. 16, r. 8 (3) of the Rules of the Superior Courts 1986 – Dismissal of third party notice – Lack of evidence – S. 27 (1) of the Civil Liability Act 1961

Facts: The third parties sought an order for setting aside the order of the High Court whereby the third parties were made to join the present proceedings for medical negligence. The third parties contended that there was no evidence on record to implicate them in the present claim filed by the plaintiff against the defendant for sustaining injuries while getting out of a van being driven by the defendant. The defendant put reliance on an expert report with regard to the medical care of the general practitioner.

Mr. Justice Max Barrett struck out the third-party notice on the ground that it was an abuse of process of law and that there was delay in serving the said notice. The Court held that in general, the notice against medical professionals who enjoyed great reputation should not be issued unless there were evidences to the contrary. The Court found that in the present case, the expert report presented by the defendant could not be relied upon as the said expert was unqualified to give any opinion as to the general practitioner's care. The Court noticed that there was not an iota of evidence supporting any involvement or role of the third party in the main substantive claim.

JUDGMENT of Mr Justice Max Barrett delivered on 6th December, 2016.

I. Key Issue Arising

1 Ought the third party notice in the within proceedings now to be set aside?

II. The Alleged Accident Underpinning the Within Proceedings

2 Mr McDonagh alleges that he suffered injuries in an accident. He claims against Ms McDonagh, his wife, for injuries allegedly suffered while getting out of a van that was insured by Mr McDonagh but being driven by Ms McDonagh. The alleged accident occurred in June, 2013. Thereafter Mr McDonagh attended and was treated at the emergency department of a hospital operated under the auspices of the HSE, and also a general medical practice operated by Drs O'Meara and Rice. On 25th January, 2016, the High Court (Barr J.) ordered that Ms McDonagh be at liberty to issue and serve a third party notice on each of the HSE and Drs O'Meara and Rice regarding alleged medical negligence that occurred in his treatment.

III. Requirement for Report in Medical Negligence Proceedings

3 The rule is well-established in case-law that it is an abuse of process to commence or continue an action in medical negligence without appropriate expert evidence to support it. The justification offered in case-law for this rule is that there are particular reputational and other implications that afflict medical professionals which require that such a rule be applied. Whether the personal and professional reputation and financial well-being of medical professionals is any more at stake in negligence proceedings than like proceedings brought against non-professional commercial actors acting in an individual capacity, and/or the rule is rooted in a particular, and not particularly egalitarian, perception of those who are professionally qualified, are issues that might reasonably be raised. But the fact remains that the rule referred to above is well-established in case-law that is binding on this Court.

4 The relatively recent decision of the High Court in Flynn v. Bon Secours Health Systems Ltd [2014] IEHC 87 offers a good example of the rule in operation. Flynn was a case in which the defendants applied for a permanent stay on the plaintiff's action for negligence, in circumstances where the plaintiff was unable to produce an expert report to support his claim. In the High Court, Hogan J., directing that the plaintiff obtain a report within 12 months, observed, inter alia, as follows:

‘[19] In Cooke v. Cronin [1999] IESC 54 the Supreme Court held that it was an abuse of process to pursue an action in medical negligence in circumstances where there were no reasonable grounds for so doing. In her judgment Denham J. approved the following passage from the judgment of Barr J. in Reidy v. The National Maternity Hospital , High Court, 31st July, 1997, where he stated:

“It is irresponsible and an abuse of...