Mitchell and Another v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 06 July 2023
• Neutral Citation: [2023] IEHC 394
• Court: High Court
• Docket Number: 2020 3384 P

Gabriel Mitchell and Marcella Mitchell

Plaintiffs

and

The Health Service Executive

Defendant

and

Sonic Healthcare (Ireland) Limited

and

Clinical Pathology Laboratories Incorporated

Third Parties

[2023] IEHC 394

2020 3384 P

THE HIGH COURT

Personal injuries – Breach of duty – Damages – Plaintiffs seeking damages in respect of personal injuries – Whether the plaintiffs’ claim was bound to fail due to the absence of the duty of care asserted

Facts: The plaintiffs, Mr and Ms Mitchell, claimed that they suffered nervous shock due to the breach of duty owed to them by the defendant, the Health Service Executive (the HSE): (i) on learning in January 2014 that their daughter had been diagnosed with metastatic cervical cancer; (ii) on accompanying her through the trauma of having to lose her much longed for pregnancy in March 2014 due to the diagnosis; (iii) on witnessing the circumstances up to and including her passing in April 2015; (iv) on learning in 2018 that her death was unnecessary and that there had been a significant delay in disclosing available information about the nature of the measures which ought to have been taken for her health and survival; (v) on hearing in May 2018 from her consultant gynaecologist/colposcopist about the cause of her death “in an inappropriate manner”; and (vi) on learning later that the information disclosed in May 2018 was available to the consultant colposcopist since June 2016. Two substantive preliminary questions arose for determination by the High Court: (1) whether the claim of the plaintiffs against the HSE should be struck out on the grounds that it discloses no reasonable cause of action having regard to the judgment in Morrissey v Health Service Executive, Quest Diagnostic Inc and Medlab Pathology Ltd [2019] IEHC 268, where Cross J held that circumstances akin to those presenting in the proceedings did not create a duty of care on the part of the defendants “not to cause [Mr Morrissey] a reasonably foreseeable injury in the form of nervous shock” (the Morrissey point); and (2) whether the plaintiffs are barred from issuing or prosecuting the proceedings because they were listed as statutory dependants in proceedings entitled Pádraig Creaven v Health Service Executive, Sonic Healthcare Ireland Ltd, Medlab Pathology Ltd, Clinical Pathology Laboratories Inc, and Coombe Women and Infants University Hospital, having record number 2018 10202 which were settled with an apology read into the court record – the HSE relied on s. 48 (2) of the Civil Liability Act 1961 which provides “Only one action for damages may be brought against the same person in respect of the death” (the s. 48 (2) point).

Held by O’Connor J that the claim by the plaintiffs for damages in respect of personal injuries relating to learning of the diagnosis in January 2014, accompanying their daughter through the pregnancy trauma, witnessing her deterioration and ultimate demise, hearing about the breaches of duty leading to her death, and hearing about the delay in the release of information, by reason of the Morrissey point was bound to fail due to the absence of the duty of care asserted. The Court would not decide until it heard further from the parties about the claim for nervous shock from the alleged breach of duty on the part of the colposcopist engaged by HSE for: (i) the imparting in an allegedly inappropriate manner of the cause of death; and (ii) the alleged retention by the colposcopist of the information from June 2016 to May 2018.

O’Connor J held that the plain wording and positioning of s. 48 (2) in the legislation means that only one action may be brought in respect of the death; the common law claim for nervous shock within the confines of Kelly v Hennessy [1995] 3 IR 253 was not included. He held that there was no specific abolition of claims for mental distress or personal injury which may be caused for example by an organisation which has a duty of care to others. Expressio unius est exclusio alterius is a principle which he paraphrased for the case as the specific exclusion of multiple causes of action for wrongful death does not abolish causes of action for other events. He held that the plaintiffs were not barred from prosecuting the proceedings by virtue of s. 48 (2).

Judgment approved.

Solicitors for the plaintiffs – Cian O'Carroll Solicitors.

Counsel for the plaintiffs – Jeremy Maher SC, Patrick Tracey SC and Ciara McGoldrick BL.

Solicitors for the defendant – Comyn Kelleher Tobin Eustace.

Counsel for the defendant – Eoin McCullough SC and Sarah Corcoran BL.

Solicitors for the second named third party – William Fry.

Counsel for the second named third party – Luan O'Braonain SC, Imogen McGrath SC and Padraic Hogan BL.

Judgment ofMr. Justice Tony O'Connordelivered on 6 July 2023

Claims of the plaintiffs

1 The plaintiffs as parents of their daughter, ( “Aoife”) claim that they suffered nervous shock due to the breach of duty owed to them by the defendant ( “the HSE”):-

(i) On learning in January 2014 that their daughter, Aoife, had been diagnosed with metastatic cervical cancer;

(ii) On accompanying Aoife through the trauma of having to lose her much longed for pregnancy in March 2014 due to the diagnosis;

(iii) On witnessing the circumstances up to and including Aoife's passing in April 2015;

(iv) On learning in 2018 that Aoife's death was unnecessary and that there had been a significant delay in disclosing available information about the nature of the measures which ought to have been taken for Aoife's health and survival;

(v) On hearing in May 2018 from Aoife's consultant gynaecologist/colposcopist (“the consultant colposcopist”) about the cause of Aoife's death “in an inappropriate manner”;

(vi) On learning later that the information disclosed in May 2018 was available to the consultant colposcopist since June 2016.

Preliminary issues

2 Two substantive preliminary questions have arisen for determination:-

(i) Whether the claim of the plaintiffs against the HSE which in turn seeks indemnity or contribution from the second named third party (“ CPL”) in respect of that claim should be struck out on the grounds that it discloses no reasonable cause of action having regard to the judgment in Morrissey v. Health Service Executive, Quest Diagnostic Inc and Medlab Pathology Ltd.[2019] IEHC 268 (“ the Morrissey judgment”), where Cross J. held that circumstances akin to those presenting in these proceedings did not create a duty of care on the part of the defendants “not to cause [Mr. Morrissey] a reasonably foreseeable injury in the form of nervous shock” ( “the Morrissey point”).

(ii) Whether the plaintiffs are barred from issuing or prosecuting these proceedings because they were listed as statutory dependants in proceedings entitled Pádraig Creaven v. Health Service Executive, Sonic Healthcare Ireland Ltd., Medlab Pathology Ltd., Clinical Pathology Laboratories Inc., and Coombe Women and Infants University Hospital, having record number 2018 10202 which were settled with an apology read into the court record (“ the 2018 proceedings”). The HSE and CPL rely on s. 48 (2) of the Civil Liability Act 1961 which provides:-

“ (2) Only one action for damages may be brought against the same person in respect of the death”.

(“ the s. 48 (2) point”). In short, the question is whether the fatal injury claim taken by Mr. Creaven in respect of the wrongful death of his wife Aoife precludes the plaintiffs (parents of Aoife) from prosecuting these proceedings. The plaintiffs and the other statutory dependants of Aoife agreed the distribution of the solatium paid under the settlement of the 2018 proceedings which also provided for the recording in open court on 4 March 2021 of the following statement:-

“The HSE and CPL wish to acknowledge that this is a uniquely tragic case, which has had the most devastating consequences for Aoife, her husband Pádraig Creaven, the plaintiff in these proceedings, and for her family. We deeply regret the pain, suffering and incalculable loss suffered/experienced by Aoife, Padraig and her family. The HSE reiterates its sincere and unreserved apology to Mr. Creaven for the failure by the CervicalCheck Programme to communicate with him in a timely and appropriate way, the results of an audit that indicated a change in the interpretation of Aoife's smear taken on 8 August 2011”.

Relevant procedural history

Plaintiffs v. HSE

3 The personal injuries summons in these proceedings was issued on 11 May 2020 with verifying affidavits by both plaintiffs filed on 18 October 2021. The HSE delivered its defence on 20 May 2022 without a specific reference to the preliminary issues now before the Court. Notice of trial dated 9 June 2022 was served by the solicitors for the plaintiffs and a commencement of trial date of 10 May 2023 was subsequently allocated. The Deputy Head of “Client Screening Services, National Screening Service”, swore the affidavit of verification for the defence of the HSE on 5 May 2023.

HSE v. Third parties

4 A third party notice directed to CPL was issued on 26 March 2021 followed by the delivery of the third party statement of claim on 3 December 2021. Solicitors for CPL delivered a defence to the claim by the HSE on 25 January 2023 which pleaded as a preliminary issue that the claim of the plaintiffs:-

“ for damages for personal injuries arising out of the alleged misinterpretation of [Aoife's] cervical smear sample in bound to fail on the grounds of public policy and/or on the grounds that the [HSE] and by extension [CPL] do not owe the plaintiffs a duty of care”. The defence for CPL also pleaded the s. 48 (2) point.

5 The HSE discontinued its third party claim against the first named third party by notice dated 8 February 2023.

Motions for trial of preliminary issues

6 On 24 February 2023, CPL issued a notice of motion seeking the trial of preliminary issues, a...