Morrissey v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 19 March 2020
• Neutral Citation: [2020] IESC 6
• Date: 19 March 2020
• Docket Number: [Appeal Nos: 2019/120, 2019/121 and 2019/122]
• Court: Supreme Court

**Please note this judgment is subject to signature and formal approval**

Between/

Ruth Morrissey and Paul Morrissey

Plaintiffs/Respondents

and

Health Service Executive, Quest Diagnostics Incorporated

and

Medlab Pathology Limited

Defendants/Appellants

[2020] IESC 6

Clarke C.J.

O'Donnell J.

McKechnie J.

Dunne J.

O'Malley J.

[Appeal Nos: 2019/120, 2019/121 and 2019/122]

THE SUPREME COURT

Damages – Loss of services – General damages – Appellants seeking to appeal from the High Court – Whether the trial judge delivered an insufficiently reasoned judgment

Facts: The first plaintiff/respondent, Ms Morrissey, had undergone screening in accordance with the National Cervical Screening Programme (CervicalCheck) in August 2009 and again in August 2012. In both instances, her smear test was reported as negative for abnormalities and she was provided with a clear result. However, in May 2014, she attended at her G.P. following symptomatic bleeding and was referred for further testing. A biopsy and an MRI scan subsequently disclosed the existence of cervical cancer. Following this diagnosis, the 2009 and 2012 smears provided by her were audited and it was reported that the original results provided in respect of both tests were incorrect. By 2015, the results of the audits had been communicated to CervicalCheck. However, their results were not disclosed to Ms Morrissey until mid-2018, when she herself made inquiries as to whether there had been an error in her case. She and the second plaintiff/respondent, her husband, commenced proceedings thereafter. The High Court (Cross J), in a judgment delivered on 3 May 2019, gave judgment in favour of the Morrisseys in the sum of €2,152,508 against the defendants/appellants, the Health Service Executive (HSE), Quest Diagnostics Incorporated and Medlab Pathology Limited, and an additional sum of €10,000 in nominal damages as against the HSE in respect of its failure to notify Ms Morrissey of the results of the audits of her earlier smear tests. The defendants sought leave to appeal directly to the Supreme Court. The High Court granted leave to appeal. There were essentially five sets of legal issues with which the Court was confronted. The first question concerned the proper standard of approach to be adopted by a screener involved in a scheme such as CervicalCheck. The second and third set of issues concerned the contention made by both Quest and Medlab which suggested that the trial judge had failed to engage properly with certain aspects of the case which they made on the facts and had, thereby, delivered an insufficiently reasoned judgment. The fourth set of issues arose in respect of the appeal brought by the HSE in relation to the finding of negligence made against it. Fifth, and finally, there were two sets of issues arising under the heading of damages: the first area of appeal concerned the award of €500,000 for general damages to Ms Morrissey; the second issue concerned the award of damages to Mr Morrissey in respect of losses attributable to having to replace services which would have been provided to the family by Ms Morrissey had it not transpired that she would have a significantly reduced life expectancy.

Held by Clarke CJ that the test in Dunne (an infant) v National Maternity Hospital [1989] IR 91 remains the basis for identifying the legal standard of care by reference to which a claim in clinical negligence is to be assessed. Clarke CJ considered that the trial judge applied the appropriate standard in reaching his conclusions. Clarke CJ held that the judgment did not, in its reasoning, fall below the irreducible minimum of reasoning. Having analysed the law in the evolving area of non-delegable duty, Clarke CJ expressed the opinion that the HSE did have such a duty in respect of patients availing of CervicalCheck. Clarke CJ held that that €500,000 represents the appropriate maximum damages to be awarded for pain and suffering in personal injury cases. Clarke CJ expressed the view that Ms Morrissey was entitled to that maximum sum. Regarding the award of damages in respect of loss of services, Clarke CJ held that any change in the law in this area is a matter which must be the subject of legislation. It seemed to Clarke CJ to follow that the High Court was incorrect in awarding the sum in question to Mr Morrissey.

Clarke CJ held that all of the appeals would be dismissed save for the appeal of Medlab in relation to the award of damages in respect of loss of services.

Appeals dismissed in part.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 19 ^th of March, 2020.

1. Introduction

1.1 The tragic circumstances underlying this appeal must be acknowledged. The first named plaintiff/respondent (“Ms. Morrissey”) is terminally ill from cancer. She had undergone screening in accordance with the National Cervical Screening Programme (“CervicalCheck”) in August 2009 and again in August 2012. In both instances, her smear test was reported as negative for abnormalities and she was provided with a clear result. However, in May 2014, Ms. Morrissey attended at her G.P. following symptomatic bleeding and was referred for further testing. A biopsy and an MRI scan subsequently disclosed the existence of cervical cancer.

1.2 Following this diagnosis, the 2009 and 2012 smears provided by Ms. Morrissey were audited and it was reported that the original results provided in respect of both tests were incorrect. By 2015, the results of the audits had been communicated to CervicalCheck. However, their results were not disclosed to Ms. Morrissey until mid-2018, when Ms. Morrissey herself made inquiries as to whether there had been an error in her case.

1.3 Ms. Morrissey and the second named plaintiff/respondent, her husband, (“Mr. Morrissey,” and collectively, “the Morrisseys”) commenced these proceedings thereafter. The first named defendant/appellant (“the HSE”) is, of course, the body charged with the provision of health services in Ireland and, in the particular context of these proceedings, with the promotion of the CervicalCheck scheme. It will be necessary to go into the precise role of the HSE in due course, for its legal obligations in respect of CervicalCheck are one of the issues which will need to be addressed.

1.4 From 2008, the HSE contracted out the testing of samples to various multinational firms. The second named defendant/respondent. Quest Diagnostic Incorporated (“Quest”), carried out an examination of the sample taken from Ms. Morrissey in August 2009, in one of its laboratories located in Grand Rapids, Michigan in the United States. The third named defendant/respondent, Medlab Pathology Limited (“Medlab”), tested the sample provided in August 2012 in one of its laboratories situated in Co. Dublin.

1.5 The High Court (Cross J.), in a judgment delivered on 3 May 2019 ( Morrissey & anor v Health Service Executive & ors [2019] IEHC 268), gave judgment in favour of the Morrisseys in the sum of £2,152,508 against all three defendants and an additional sum of £10,000 in nominal damages as against the HSE in respect of its failure to notify Ms. Morrissey of the results of the audits of her earlier smear tests.

1.6 Each of the defendants/appellants sought leave to appeal directly to this Court. An oral hearing ensued. For the reasons set out in a judgment of this Court ( Morrissey & anor v. Health Service Executive & ors [2019] IESC 60), leave to appeal was granted although the issues became somewhat more confined in circumstances described in that judgment.

1.7 It is, therefore, appropriate to set out the basis on which leave to appeal was granted, for that defines the parameters of this appeal. Before this Court, it was outlined that there were a number of other cases pending before the High Court which have arisen in a similar factual context to that of these proceedings. It was also stressed that the work of the CervicalCheck Tribunal, as established by law in July 2019, will involve the assessment of legal liability and will therefore require the application of the same legal test as that determined in the courts. Thus, it was clear that the Tribunal would be significantly constrained in progressing its work if there remained doubt about the proper test to be applied in determining legal liability.

While it is usually appropriate that an appeal is heard in the Court of Appeal, where narrowing and clarification of the issues of importance can take place, here this Court held that the question of the standard of care to be applied in screening cases met the constitutional threshold for leave to appeal generally and, having regard to the urgency which attends its clarification, also met the additional criteria necessary to grant leapfrog leave.

1.8 In respect of whether the other grounds of appeal urged by the defendants justified a grant of leapfrog leave, it was held that the interests of justice required granting that wider leave. It should be noted that both Quest and Medlab had agreed at the oral hearing to drop certain grounds of appeal as advanced in their applications for leave. At para. 4.7, the Court held:-

“Considering the standard of care grounds in the abstract, while issues concerning some of the findings of the High Court remained alive before the Court of Appeal, would be highly unsatisfactory. I am also satisfied that it would be unfair to the defendants/appellants to require them to abandon all of the other grounds as the price for obtaining leapfrog leave. Most of those grounds are sufficiently closely connected with the standard of care grounds in any event such that this Court is likely to need to at least get into the facts relevant to those grounds to some extent. Insofar as the causation and, in the case of Medlab, quantum grounds are raised, it seems to me that these issues can most conveniently be dealt with in the same appeal.”

2. The Broad Issues

2....