Morrissey v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 23 July 2020
• Neutral Citation: [2020] IESC 43
• Court: Supreme Court
• Docket Number: [Appeal No:]
• Date: 23 July 2020

BETWEEN/

RUTH MORRISSEY

AND

PAUL MORRISSEY

PLAINTIFFS/RESPONDENTS

AND

HEALTH SERVICE EXECUTIVE, QUEST DIAGNOSTICS INCORPORATED

AND

MEDLAB PATHOLOGY LIMITED

DEFENDANTS/APPELLANTS

[2020] IESC 43

Clarke C.J.

O'Donnell J.

McKechnie J.

Dunne J.

O'Malley J.

[Appeal No:]

THE SUPREME COURT

Damages – Loss of services – Costs – Respondents seeking damages – Whether the costs of the appeals should be treated as the costs of a single procedure

Facts: The High Court (Cross J), in a judgment delivered on 3 May 2019, gave judgment in favour of the plaintiffs/respondents, 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. 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. Arising out of the delivery of the principal judgment on this appeal, two issues arose between the parties concerning, respectively, the form of order which the Court should make in respect of the substance of the case and the orders which the Court should make in relation to costs.

Held by Clarke CJ that, in the unusual circumstances of this case, despite it being a very marginal call, the more just course of action to adopt would be to reduce the award against both the HSE and Quest by the same amount as it was agreed that the award against Medlab must be reduced. He therefore proposed that all three appeals be allowed but only to the extent of reducing the award in each case in favour of Mr Morrissey by €575,000. In all other respects, as indicated in the principal judgment, he proposed that the appeals should be dismissed.

Clarke CJ held that the appropriate order should be that the entire costs of all the appeals should be treated as the costs of a single procedure involving all issues arising under each of the appeals. He held that those costs should be awarded as to two thirds jointly and severally against all three appellants and as to the remaining one third jointly and severally against the HSE and Quest. No issues as to contributions or indemnities as and between the appellants were before the Court and he would, in those circumstances, make no comment on where the ultimate burden of those costs should lie.

Appeals dismissed in part.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 23rd of July, 2020.

1. Introduction

1.1 Between hearing submissions on Thursday last week and the delivery of this judgment today, the Court has heard the tragic news of the death of Ms. Ruth Morrissey. On my own behalf, and on behalf of all of the members of the Court, we would like to express our deepest sympathy to the family and friends of the late Ms. Morrissey. When giving judgment on the main issues on these appeals, I started by noting the very tragic circumstances which now have, most sadly, come to fruition. However, the function of this Court is to decide the important legal issues which have arisen on these appeals and which have the potential to affect many more cases even beyond the scope of CervicalCheck. It is in that context that it is necessary to rule on the small number of outstanding issues.

1.2 Arising out of the delivery of the principal judgment on this appeal (see Morrissey v. Health Service Executive & ors. [2020] IESC 6 (“the principal judgment”), two issues have arisen between the parties concerning, respectively, the form of order which the Court should make in respect of the substance of the case and the orders which the Court should make in relation to costs.

1.3 Written submissions on those issues were exchanged between the parties and a remote hearing took place on the 16th July. This judgment is directed towards the issues which arose which I propose to address in turn. Parties will be described in this supplemental judgment in the same way as they were described in the principal judgment.

2. The Order on the Substantive Appeal

2.1 As appears from the principal judgment, Medlab, unlike the HSE and Quest, appealed against the quantum of damages awarded by the High Court to the Morrisseys. There were two strands to that appeal, which it will be necessary to mention in due course. However, for the reasons set out in the principal judgment, Medlab succeeded on one of those strands. Agreement was reached between Medlab and the Morrisseys that the practical result of that decision properly means that the damages awarded to Mr. Morrissey as against Medlab must be reduced by €575,000. That much is not in dispute. It will also be necessary to return to this question, and the other issue raised in respect of quantum, when dealing with costs.

2.2 However, for present purposes, it is appropriate to start by identifying the dispute which does arise. Both the HSE and Quest suggest that the damages awarded against them by the High Court should also be reduced by the same sum of €575,000, notwithstanding the fact that neither of those parties appealed to this Court against the quantum of damages awarded by the High Court. The Morrisseys, on the other hand, suggest that the award made by the High Court against both the HSE and against Medlab should not be altered. That is the only issue concerning the substantive element of the Court's order which is in dispute.

2.3 It is, perhaps, appropriate to commence by making a number of observations. First, it is important to emphasise that the issue is not as to whether the Court should affirm the decision of the High Court on quantum in respect of both the HSE and Quest. Rather, the question is as to whether the issue of quantum against both of those parties requires any order from this Court at all. On the case made by the Morrisseys, questions of quantum did not form part of the relevant appeals, precisely because neither the HSE nor Quest had chosen to appeal that aspect of the decision of the High Court. On that basis, it is said that this Court does not have to deal with this issue at all because it is not properly before the Court due to what is said to have been a conscious choice made by parties, all of whom had the benefit of significant legal advice. In other words, it is said that it is unnecessary, and indeed inappropriate, for this Court to affirm the quantum awarded against the HSE and Quest, but rather that this Court should simply make no order in that regard so that the High Court determination would go undisturbed.

2.4 It should also be mentioned, without necessarily indicating that it should have any bearing on the proper resolution of the issue, that, prior to the appeal, it had been agreed by the Government of Ireland that the Morrisseys would, in any eventuality, be paid the full damages awarded by the High Court irrespective of the outcome of the appeals. It is the Court's understanding that those damages have been paid so that the only effect of a decision on this issue will potentially be to alter the way in which the burden of the payment of those damages will fall on the various parties.

2.5 Finally, it is appropriate to observe that there were, of course, technically three appeals before the Court brought by, respectively, the HSE, Quest and Medlab. That fact is also of some possible relevance to the question of costs, for it is said by some of the appellants that any award of costs should relate only to the appeal brought by the appellant concerned. In that sense, it is argued that, while arising out of the same proceedings in the High Court, there were technically three separate appeals before this Court (even though all three were managed and heard together) so that, it is said, there are separate sets of costs referable to each of the respective appeals. There does seem to be something of an inconsistency between some of the arguments which seek to treat the set of appeals as being substantially the same case for some purposes but separate cases for others. The Morrisseys suggest that the appeal of the HSE and that of Quest are separate from that of Medlab in the sense that the only issues that can properly arise on the appeals of those parties are the issues addressed in their notice of appeal. However, for the purposes of costs, the Morrisseys argue that there should be a single order for costs jointly and severally against each of the appellants.

2.6 What is perhaps even more striking is the argument made by Quest to the effect that, insofar as the substance is concerned, its appeal should not be taken as...