Murphy v DePuy International Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 20 January 2015
• Neutral Citation: [2015] IEHC 153
• Court: High Court
• Date: 20 January 2015

Murphy v DePuy International Ltd

Approved No redaction needed

BETWEEN

RANDA MURPHY

PLAINTIFF

AND

DePUY INTERNATIONAL LIMITED

DEFENDANT

[2015] IEHC 153

[No. 1134 O.P/2011]

THE HIGH COURT

Tort – Personal injuries – Damages – Maintenance of claim – S.3 (d) of the Personal Injuries and Assessment Board Act 2003 – Interpretation

Facts: Following the insertion of a hip replacement system manufactured by the defendant into the plaintiff and the subsequent recall of that system by the defendant, the plaintiff initiated proceedings for severe personal injuries and damages against the defendant. The defendant contended that the plaintiff could not bring the claim prior to obtaining the authorization from the Personal Injuries and Assessment Board as it did not fall within the exclusion under s. 3(d) of the Personal Injuries and Assessment Board Act 2003. The plaintiff now sought a ruling on whether an authorization from the Personal Injuries and Assessment Board was required.

Ms. Justice Faherty held that the plaintiff required an authorization from the personal injuries and Assessment Board prior to commencement of the proceedings. The Court found that the plaintiff's claim fell outside of the purview of the exclusionary principle set out under s. 3(d) of the Personal Injuries and Assessment Board Act 2003. The Court observed that there were no allegations of negligence made against the defendant in the claim and the insertion of the alleged defective hip implant system would not by itself bring the claim within the provision of health service to a person. The Court interpreted that the relevant statute should be assigned plain and ordinary meaning as intended by the legislature.

1 1. By Notice of Motion dated the 13 ^th January 2014 the plaintiff seeks a preliminary ruling whether an authorisation from the Personal Injuries Assessment Board (or PIAB) was required prior to the institution of the within proceedings as provided for by part 2 of the Personal Injuries Assessment Board Act 2003 (or the Act of 2003).

Background

2 2. On the 10 ^th October 2005 the plaintiff underwent a left hip resurfacing procedure at the Galway Clinic, Galway. A DePuy ASR resurfacing hip implant system was inserted. Post operatively, the plaintiff's recovery was unremarkable and she was discharged from hospital on crutches on the 15 ^th October 2005, with outpatient and physiotherapy appointments. Thereafter, it is alleged that the plaintiff's left hip remained sore and painful and that she continued to suffer severe ongoing pain and distress. She was duly referred to an orthopaedic surgeon at Galway University Hospital and on the 21 ^st May 2010 a consultant orthopaedic surgeon revised the left hip resurfacing to an uncemented total hip replacement.

3 3. On the 26 ^th August 2010 the defendant, by its servants or agents, issued a worldwide recall in respect of two of its hip replacement systems, including the DePuy ASR resurfacing hip implant system which had been surgically inserted into the plaintiff on the 10 ^th October 2005. By letters dated respectively 29 ^th August 2010 and 15 ^th November 2010, the plaintiff was informed by the surgeon who had inserted the DePuy ASR resurfacing hip implant system that that system was one of those which had been the subject matter of the worldwide recall by the defendant.

4 4. On the 15 ^th December 2011 the plaintiff issued the within proceedings against the defendant for alleged severe personal injuries, loss of damage and expense, suffered and incurred by her as a result of the negligence, breach of agreement and breach of duty on the part of the defendant.

5 5. The defendant has, in its defence delivered on the 18 ^th June 2013, pleaded, inter alia, that the plaintiff is precluded from maintaining her claim for personal injuries on the basis she failed to obtain an authorisation from the PIAB prior to maintaining her claim.

6 6. Notwithstanding having issued the within proceedings, the plaintiff duly obtained an authorisation from the PIAB in respect of her claim herein and a further set of proceedings issued on her behalf entitled "Randa Murphy v. DePuy International Limited, Record Number 2012/8010P".

7 7. The court has been advised that the second set of proceedings were issued on a protective basis only and that the plaintiff's position remains i.e. that the first set of proceedings, the subject of the within application, are valid and that an authorisation from the PIAB was not required. In the grounding affidavit to the present application, the plaintiff's solicitor avers as follows:-

8 8. "I say and believe that at the time when these proceedings were issued a view was taken that the here and before described surgery, including the provision and use of the DePuy ASR resurfacing hip implant system in the course of the said surgery constitutes, inter alia, the provision of a health service and/or the carrying out of a medical or surgical procedure and/or arising out of the provision of medical advice or treatment within the meaning of s.3 (d) the PIAB Act, 2003 and therefore did not require an application to the Personal Injuries Assessment Board for an appropriate Authorization from them before the within proceedings were issued and served on the Defendant herein."

Issue

9 9. The question to be determined in this application is whether the plaintiff's claim against the defendant comes within the exclusionary provisions set out in s. 3(d) of the Act of 2003, thereby obviating the requirement for an authorisation under the Act to institute court proceedings. It is accepted by both sides that absence of a PIAB authorisation in a case to which the Act applies is not a mere fault in procedure but goes to the root of the court's jurisdiction to hear and determine the claim. This was made clear in Sherry v Primark Ltd. [2010] 1IR 407 where O'Neill J. states:

"Section 12(1) stipulates that an application first be submitted to the Personal Injuries Assessment Board for an authorisation from the Personal Injuries Assessment Board before court proceedings may be brought. It contains a statutory prohibition on actions being instituted at all unless and until an application is made to the Personal Injuries Assessment Board and an authorisation issued; only then can court proceedings be brought… Thus, in my view, the correct conclusion is that s. 12(1) operates as a jurisdictional rather than a procedural provision, so that a court does not have a jurisdiction to permit the commencement of proceedings in respect of a relevant claim until the foregoing procedures under the Act of 2003 have been exhausted."

The law

10 10. Section 3 of the Act of 2003 provides:-

"This Act applies to the following civil actions-"

(a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the course of the employee's employment with that employer

(b) a civil action by a person against another arising out of that other's ownership, driving or use of a mechanically propelled vehicle

(c) a civil action by a person against another arising out of that other's use or occupation of land or any structure or building

(d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person)."

The plaintiff's submissions

11 11. Counsel for the plaintiff contends that the within proceedings come within the exclusionary wording of s. 3(d) of the Act of 2003 and he submits that the particular wording in s. 3(d) was consciously chosen by the Legislature to underscore what counsel describes as a "context driven" approach to the exclusionary provision. It is submitted that it had been open to the Legislature to adopt a more restrictive approach but, it is argued, the Legislature must be taken to have deliberately chosen not to categorise according to legal cause of action or legal plea. The focus is neither on injury nor cause of action but rather rooted in the factual context. It is therefore relevant that the alleged defective medical product, the subject of the within proceedings, was not received by the plaintiff under any arrangement between her and the defendant or its servants or agents; rather it was received in the course of orthopaedic advice and treatment from an orthopaedic surgeon. The plaintiff's claim therefore arises in the context of advice and surgical treatment from an orthopaedic consultant surgeon and thus falls within the provisions of a health service to the plaintiff, thereby obviating the requirement for an authorisation.

12 12. Counsel emphasises that the most important component of the exemption in s. 3(d) are the words " arising out of the provision of any health service to a person", which is the "omnibus" clause and he submits that the remaining provisions are simply illustrative of the types of health service which benefit from the exemption. It is submitted that the provision of a health service such as occurred in the plaintiff's case i.e. the advice and surgical treatment she received is the context and, since her claim arises out of that context sine qua non it is excluded from the Act of 2003.

13 13. While the plaintiff's central submission is that the wording of s. 3(d) plainly encompasses the plaintiff's situation, reliance is placed on the dictum of O'Neill J. in Gunning v. National Maternity Hospital and Eurosurgical Limited and Richard Wolfe GMBH [2008] IEHC 352 as direct support for the plaintiff's contention that, in determining s. 3 (d) exclusions, one looks at the context or factual circumstances.

14 14. In Gunning, the plaintiff instituted...