Murphy v Depuy Ireland Unlimited
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] IEHC 220 |
| Docket Number | [Record No. 2021/3617 P] |
| Court | High Court |
[2023] IEHC 220
[Record No. 2021/3617 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered on the 28 th day of April, 2023.
. This is an application brought by the defendant seeking an order pursuant to O. 8, r. 2 of the Rules of the Superior Courts setting aside the renewal of the plaintiff's personal injury summons.
. By order perfected on 30th May, 2022, Hanna J. allowed the plaintiff to renew her personal injury summons for a period of three months, on an ex parte application brought by the plaintiff.
. These proceedings relate to a repetitive strain injury allegedly suffered by the plaintiff while in the employment of the defendant, due to the awkward postures she was required to adopt while working at the defendant's factory.
. The plaintiff resists the defendant's application on the basis that there are special circumstances which justified the renewal of her personal injury summons.
. It is necessary to set out some of the background to these proceedings in order to understand the basis on which the application is brought.
. The plaintiff was employed by the defendant as a General Operative from in or around the year 2000, until May 2017.
. The plaintiff sought authorisation from the Personal Injuries Assessment Board (hereinafter referred to as “PIAB”) on 19th March, 2020 to pursue a claim for damages for personal injuries suffered by her while in employment with the defendant. PIAB issued an authorisation on 11th November, 2020, allowing the plaintiff to initiate proceedings.
. In her personal injury summons issued on 7th May, 2021, the plaintiff claims that she was required to adopt an awkward posture; to hold herself in static positions for prolonged periods during her shifts; and to carry out repetitive tasks, without rotation, which resulted in her body being exposed to vibrations and/or mechanical stress. The plaintiff claims that such stress caused injuries to her left shoulder and to both elbows, requiring her to cease work in or about May 2017.
. The plaintiff set out extensive particulars of negligence on part of the defendant in her personal injury summons. It is not necessary to set out those claims in full, but suffice it to say that the plaintiff claims that the defendant failed in its duty to provide a safe system of work for her, which resulted in her suffering significant personal injuries.
. The plaintiff failed to serve the personal injury summons on the defendant within the 12 months provided for by O. 8, r. 1(1) of the rules. The summons was required to be served by 7th May, 2022. By ex parte docket dated 17th May, 2022, grounded on an affidavit sworn by Ms. Anne O'Driscoll, the plaintiff's solicitor, the plaintiff sought an order granting leave to renew the personal injury summons. Hanna J. granted that relief on 23rd May, 2022, which order was perfected on 30th May, 2022. The summons was served on the defendant on 9th June, 2022.
. On 20th July, 2022, Ronan Daly Jermyn LLP entered an appearance on behalf of the defendant, which stated on its face that they sought to ‘Enter an Appearance for the Defendant in this action without prejudice to any application that may be brought to set aside the renewal of the summons.’
. On 25th July, 2022, the defendant issued a motion to set aside the renewal of the personal injury summons, grounded on an affidavit sworn by Ms. Marianne Lonergan, the defendant's solicitor.
. It is against that background that the defendant seeks to have the renewal of the personal injury summons set aside.
. The evidence before the court was contained in three affidavits, being the affidavit of Ms. O'Driscoll sworn on 17th May, 2022, grounding the plaintiff's ex parte application to renew the personal injury summons; the affidavit of Ms. Marianne Lonergan, solicitor for the defendant, sworn on 21st July, 2022, grounding the defendant's motion to set aside the renewal of the summons; and the replying affidavit of Ms. O'Driscoll sworn on 10th November, 2022.
. Both affidavits of Ms. O'Driscoll were in very similar terms, although the replying affidavit appeared to contain more detail as to the reasons for the failure of the plaintiff to serve the summons within 12 months.
. Ms. O'Driscoll averred that the claim being made by the plaintiff would require an expert's report from an engineer and/or ergonomist, which were not to hand at the time the summons was issued. She further averred that there were in the region of 37 similar claims against the defendant, such that the defendant ought to have been familiar with the type and nature of the claim made by the plaintiff herein, prior to the service of the proceedings upon it.
. She stated that she took over the plaintiff's file in late November 2021. She outlined that the solicitor who had been dealing with the file, had retired in January 2021, resulting in the redistribution of his work throughout the firm and causing significant logistical difficulties within the firm. Further, it was averred that his secretary was also out on sick leave for a number of months in 2021.
. There were further averments made as to the extent of the effect of Covid-19 on the plaintiff's solicitor's firm, detailing extensive staff absences which were particularly damaging, owing to the relatively small size of the firm. These absences occurred mostly between 1st May, 2021 and 1st June, 2022. She averred that these circumstances resulted in a ‘perfect storm’, which led to the failure to serve the summons in time. She averred that the circumstances should be viewed collectively, as amounting to sufficient special circumstances to justify renewing the summons.
. She averred that an associate solicitor took over the plaintiff's file in October 2021 and emailed the defendant's solicitor on 28th October, 2021 inquiring as to whether they were authorised to accept service of the proceedings. The defendant's solicitor replied on 2nd November, 2021, confirming they had such authority. However, that the email was not forwarded to the solicitor dealing with the file. She exhibited the relevant correspondence. She further averred that the response from the defendant's solicitor was not sent to her firm in hard copy. She stated that it appeared that the defendant's email had not been directed to the correct solicitor dealing with the file at that time in the plaintiff's solicitor's firm.
. Ms. O'Driscoll went on to state that the associate solicitor had gone on maternity leave in November 2021, which was not readily anticipated by the firm in its allocation of the retiring partner's files in early 2021. There was further pressure caused within the firm, due to the solicitor, who was going on maternity leave, having to hand over her files to other solicitors in the firm.
. It was averred that due to oversight, the proceedings were not served within the time limit provided for in the rules. She outlined that it was only upon a detailed review of all the cases of a similar nature against the defendant, which was carried out on 13th May, 2022, that the deponent discovered that the summons in this case had not been served.
. It was averred that because the plaintiff was now statute-barred from issuing a fresh summons against the defendant, as the statute expired on or about 11th May, 2021; failure to obtain a renewal of the summons, would cause great hardship to the plaintiff in precluding her from prosecuting her claim against her former employer.
. She further averred that when the failure to serve the summons was identified, the time limit for service had only expired six days previously, and that the plaintiff had acted expeditiously to bring an application to renew the summons within two days thereafter. The application to renew the summons was moved on 17th May, 2022; 10 days after the period for service had elapsed.
. As a result of this short delay, Ms. O'Driscoll averred that the defendant had suffered no prejudice in the failure to serve the summons within time. She noted that the defendant ought reasonably to have been aware of the plaintiff's injuries as a result of internal complaints made by the plaintiff during her employment. Further, she noted that the defendant would have received correspondence from PIAB when the plaintiff's claim was lodged and when authorisation was granted to the plaintiff to proceed with her action, in or around June 2020.
. Ms. O'Driscoll averred that the defendant had not pointed to any specific prejudice it would suffer if the personal injury summons were renewed. Further, she outlined that the defendant's claim that they would be precluded from pleading the statute of limitations if the summons were renewed, was incorrect, and that that avenue was still available to plead in its defence to the action.
. Ms. Lonergan swore the affidavit grounding the defendant's motion to set aside the renewal of the plaintiff's personal injury summons. She averred that the relevance of the lack of expert reports from an engineer and an ergonomist was not clear from the plaintiff's affidavit, given that the personal injury summons had already issued at that stage.
. She further questioned the relevance of the defendant's familiarity with claims of this nature and outlined that service was still required within the time limits provided for in the rules.
. She noted that it was not clear from Ms. O'Driscoll's affidavit what the relevance was of the sick leave issues and the Covid-19 pandemic, as the file had come to the solicitor's attention in November 2021, with 6 months still on the clock for the service of the summons.
. It was further averred that the defendant could not be at fault for the email of 2nd November,...
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