Murphy v Greene

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,GRIFFIN J.,McCarthy J.,O'FLAHERTY J.,[HEDERMAN CONC]
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2793
• Court: Supreme Court
• Docket Number: [S.C. No. 207 of 1988]
• Date: 01 January 1991

1990 WJSC-SC 2793

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

207/88

MURPHY v. GREENE

NORBERT MURPHY

Plaintiff/

Respondent

and

DAMIAN GREENE

Defendant/

Appellant

Citations:

MENTAL TREATMENT ACT 1945 S260

O'DOWD V NORTH WESTERN HEALTH BOARD 1983 ILRM 186

RICHARDSON V LONDON CO COUNCIL 1957 1 WLR 751

MENTAL TREATMENT ACT 1930 S16 (UK)

LUNACY ACT 1890 S330

R LTD IN RE 1989 ILRM 757

COMPANIES ACT 1963 S205(7)

MENTAL TREATMENT ACT 1945 S260(2)

MENTAL TREATMENT ACT 1945 S260(1)

CONSTITUTION ART 34

MCCORMACK, STATE V CURRAN 1987 ILRM 225

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40.3.1

CONSTITUTION ART 34.3.1

QUINN, STATE V RYAN 1965 IR 70

MACAULEY V MIN FOR POSTS & TELEGRAPHS & ORS 1966 IR 345

EMERGENCY POWERS BILL, IN RE 1977 IR 159

BULA LTD V TARA MINES LTD 1987 IR 85

HENEHAN V AIB LTD UNREP HIGH 19.10.84 1985/2/279

WUNDER V HOSPITALS TRUST (1940) LTD UNREP SUPREME 24.0.1967 & 22.02.1972

RSC O.1 r1

SHACKLETON V SWIFT 1913 2 KB 304

FAMILY LAW (PROTECTION OF SPOUSES & CHILDREN) ACT 1981

MENTAL TREATMENT ACT 1930 S16(2) (UK)

Synopsis:

ACTION

Institution

Condition - Leave - High Court - Condition precedent - Statute - Requirement - Mental treatment code - Issue of certificate grounding admission to mental hospital - Proposed civil proceedings against medical practitioner - Alleged lack of reasonable care - Substantial grounds required for such contention - Onus of proof to be discharge by applicant seeking leave - Curtailment of citizen's right of recourse to Courts - Rules of the Superior Courts, 1986, order 40, r. 4 - Mental Treatment Act, 1945, s. 260 - Constitution of Ireland, 1937, Article 40 - (207/88 - Supreme Court - 18/12/90) - [1991] ILRM 404

|Murphy v. Greene|

CONSTITUTION

Personal rights

Courts - Recourse - Curtailment - Action - Commencement - Condition precedent - Leave of High Court - Statutory requirement - Mental treatment code - Patient admitted to hospital on certificate of defendant - Proposed action based on defendant's lack of reasonable care - (207/88 - Supreme Court - 18/12/90)

|Murphy v. Greene|

PROFESSIONS

Medical practitioner

Negligence - Mental hospital - Patient - Admission - Prerequisite - Certificate of doctor - Duty of care - Standard - Leave of High Court required for institution of action - (207/88 - Supreme Court - 18/12/90) - [1991] ILRM 404 - [1991] I.L.T. 146

|Murphy v. Greene|

STATUTORY INTERPRETATION

Constitution

Personal rights - Curtailment - Limitation - Necessity - Mental hospital - Patient - Admission - Certificate of medical practitioner - Duty of care - (207/88 - Supreme Court - 18/12/90) - [1991] ILRM 404 - [1991] I.L.T. 146

|Murphy v. Greene|

PRACTICE

Documents

Affidavit - Contents - Sufficiency - Notice of motion - Statements - Affidavit restricted to bald averment that statements in notice were true - Non-compliance with rules of court - (207/88 - Supreme Court - 18/12/90) - [1991] ILRM 404

|Murphy v. Greene|

WORDS AND PHRASES

"Substantial grounds"

Courts - Recourse - Curtailment - Action - Commencement - Condition precedent - Leave of High Court - Statutory requirement - Mental treatment code - Patient admitted to hospital on certificate of defendant - Proposed action based on defendant's lack of reasonable care - Substantial grounds for plaintiff's contention required - (207/88 - Supreme Court - 18/12/90)

|Murphy v. Greene|

1 JUDGMENT delivered on the 18th day of December 1990by FINLAY C.J. [HEDERMAN CONC]

2 This is an appeal brought by the Defendant against an Order of the High Court made on the 9th May 1988 by MacKenzie J., pursuant to the provisions of Section 260 of the Mental Treatment Act 1945, giving to the Plaintiff leave to institute proceedings against the Defendant in respect of acts purporting to have been done by the Defendant in pursuance of the Act of 1945.

The proceedings

3 The Plaintiff instituted proceedings by a Plenary Summons issued on the 25th September 1985 claiming damages for negligence, false imprisonment and libel. In the Statement of Claim which was apparently served with or shortly after the Summons, the Plaintiff claimed that he was wrongfully detained in Dundrum Garda Station on the 7th May 1985, and that whilst so detained that the Defendant signed a certificate in the form No. 6 of the forms prescribed under the Mental Treatment Act 1945, and that he did so negligently, and that as a result the Plaintiff was taken forcibly and under a garda escort by ambulance to St. Brendan's Mental Hospital, and there detained until approximately the hour of 12. 45 p.m. on the 7th May 1985. To that claim a defence was delivered on behalf of the Defendant on the 26th November 1985 in which the allegations, and in particular, the allegations of negligence were denied, but no issue was raised concerning the validity of theproceedings which had been instituted. To that defence a simple joinder of issue by way of reply was delivered on the 23rd May of 1986.

4 A Notice of Trial was then served on the 28th August 1986.

5 The next step apparently was a Notice of Motion served by the Plaintiff, which is dated the 29th March 1988, and was returnable for the 25th April 1988, seeking "such leave as is mentioned in Section 260 of the Mental Treatment Act 1945in respect of the present or new identical proceedings against the Defendant for negligence, defamation and false imprisonment". This Notice of Motion then contained a paragraph which was headed:

"Take Notice that the Plaintiff will prove and rely on the following facts in support of this said application"

6 and there are then set out eleven sub-headings of allegations of fact. The Affidavit upon which thisMotion was supported is an extremely brief Affidavit filed by the Plaintiff, referring to the Notice of Motion and stating that all the facts set out therein are true and accurate, and exhibiting copies of the form referred to in the Notice of Motion as being the certifyingform.

7 Although no objection was taken to this method of bringing forward a Notice of Motion pursuant to Section 260 of the Act of 1945, it seems necessary for me to emphasise that it is not an appropriate procedure and that with regard to an application under Section 260, as with regard to any matter which in the absence of special procedures involves the submitting of affidavit evidence to the Court for the purpose of it exercising a jurisdiction, the facts relied upon must be actually and clearly deposed to in an affidavit and not by reference to any other written document.

8 By way of rejoinder to this Notice of Motion the Defendant brought an application to strike out the actionfor want of a prior order made pursuant to Section 260 giving leave for the institution of proceedings. That Motion was supported by an Affidavit of the Solicitor for the Defendant merely indicating the nature of the proceedings and the absence of an Order giving leave.

9 In addition, the Defendant filed a substantive Affidavit disputing and dealing with the allegations contained in the Notice of Motion.

10 To that Affidavit a Replying Affidavit was filed by the Plaintiff.

11 By order dated the 9th May 1988, MacKenzie J. dealt with the Motion brought by the Plaintiff and ordered:

"Pursuant to Section 260 of the Mental Treatment Act 1945that the Plaintiff be at libery to issue fresh proceedings herein against the Defendant herein for negligence, defamation and falseimprisonent."

12 There does not appear, as part of that Order at least, to have been an actual Order striking out the invalidproceedings which had already been commenced.

The Section

13 The relevant terms of Section 260 of the Act of 1945 are asfollows:

14 2 "1. No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act, save by leave of the High Court, and such leave shall not be granted unless the Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.

15 2. Notice of an application for leave of the High Court under subsection (1) of this Section shall be given to the person against whom it is proposed to institute the proceedings, and such person shall be entitled to be heard against the application."

The interpretation of the Section

16 The interpretation of this Section of the Act of 1945 came before this Court in the case of O'Dowd v. The North Western Health Board 1983 ILRM, 186. It does not appear to have been considered by either this Courtor by the High Court in any other reported decision. In that case the decision of the Court was to allow an appeal against an Order of the High Court giving leave to institute proceedings under Section 260 by a majority, O'Higgins C.J. and Griffin J. concluding that on the evidence there were not substantial grounds for the Plaintiff's contention that either of the Defendants had acted without reasonable care, and Henchy J., upon the individual facts of the case, dissenting.

17 Each of the three Judges delivered judgments, and in each of them the question of the extent of the burden of proof provided for in the Section on the Plaintiff seeking leave to institute proceedings was considered. In the course of his judgment, O'Higgins C.J. stated asfollows:

"It seems to me that it is necessary in the first instance to consider the meaning to be attached to the words "substantialgrounds". Obviously, they indicate that the grounds relied on must be real and not imaginary, and must be supported by credible evidence. Also, it seems to me thatthese grounds must be such as to indicate either bad faith or want of reasonable care, and, accordingly, to call for an answer or explanation on the part of the person sought to be sued. This leads me to conclude that the Section requires the Applicant for leave to sue to establish something approaching a...