Payne v Shovlin
| Jurisdiction | Ireland |
| Judge | Kearns J. |
| Judgment Date | 09 February 2006 |
| Neutral Citation | [2006] IESC 5 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 32 of 2005] |
| Date | 09 February 2006 |
BETWEEN
AND
[2006] IESC 5
THE SUPREME COURT
PRACTICE AND PROCEDURE:
Disclosure
Expert evidence - Medical negligence - Reports - Disclosure to other parties -Preliminary report of plaintiff's medical expert - Whether requirement to furnish report - Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469 and Gallagher v Stanley [1998] 2 IR 267 considered; Galvin v Murray [2001] 1 IR 331 and Kincaid v Aer Lingus [2003] 2 IR 314 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 39, rr 45, 46 and 50 - Rules of the Superior Courts (No 6)(Disclosure of Reports and Statements) 1998 (SI 391/1998) - Appeal against disclosure order dismissed (32/2005 - SC - 9/2/2006)[2006] IESC 5, [2007] 1 IR 114; [2006] 2 ILRM 1 Payne v Shovlin
COURTS & COURT OFFICERS ACT 1995 S45
RSC O.39 r42
RSC O.39 r43
RSC O.39 r44
RSC O.39 r45
RSC O.39 r46
RSC O.39 r47
RSC O.39 r48
RSC O.39 r49
RSC O.39 r50
RSC O.39 r51
RULES OF SUPERIOR COURTS (RSC) (NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998
RSC O.39 r45(1)(e)
RULES OF SUPERIOR COURTS (RSC) (NO 7) 1997 (PERSONAL INJURIES) (REPORTS & STATEMENTS) SI 348/1997
RSC O.39 r46(1)
RSC O.39 r46(6)
GALVIN v MURRAY & CORK CO COUNCIL 2001 1 IR 331 2001 2 ILRM 234
KINCAID v AER LINGUS TEORANTA 2003 2 IR 314
RULES OF THE SUPERIOR COURTS (COMMERCIAL PROCEEDINGS) 2004 SI 2/2004 R22(1)
RSC O.25 r8(1)
CIVIL PROCEDURE RULES 1999 (UK) r35.10(3)
WOOLF ACCESS TO JUSTICE FINAL REPORT 1996 CHAPTER 15 PARA 5
RULES OF THE SUPERIOR COURTS (COMPETITION PROCEEDINGS) 2005 SI 130/2005
KENNING v EVE CONSTRUCTION LIMITED 1989 1 WLR 1189
RSC O.25 r8(1)(b)
DERBY & CO LTD v WELDON 1991 I WLR 652
JACKSON v MARLEY DAVENPORT LTD 2004 EWCA CIV 1225
SMURFIT PARIBAS BANK LTD v AAB EXPORT FINANCE LTD 1990 1 IR 469
GALLAGHER v STANLEY & NATIONAL MATERNITY HOSPITAL 1988 2 IR 267
COURTS & COURT OFFICERS ACT 1995 S45(1)(a)(i)
COURTS & COURT OFFICERS ACT 1995 S45(3)
SHELL PENSIONS TRUST LTD v PELL FRISCHMANN 1986 2 AER 911
JUDGMENT delivered on the 9th day of February, 2006 , by Kearns J.
This appeal concerns the interpretation of various statutory provisions relating to the disclosure of reports and statements from expert witnesses intended to be called at trial. The obligations imposed on litigants in this respect are provided for by section 45 of the Courts and Court Officers Act, 1995 ( "the 1995 Act") and Rules 42 – 51 of Order 39 of the Rules of the Superior Courts as inserted by Statutory Instrument No. 391 of 1998 " Rules of the Superior Courts (No. 6) (Disclosure of reports and statements), 1998", ("S.I. 391/1998")
The present proceedings were initiated by a plenary summons dated the 7th December, 2001, wherein the plaintiff claims damages against the various defendants for alleged negligence in medical treatment afforded to the plaintiff in November 2000, as a result of which it is alleged the plaintiff suffered an intra-cerebral bleed resulting in severe personal injuries, loss and other damage.
The plaintiff delivered a Statement of Claim on the 14th January, 2002, and the Defence of the second and third named defendants was delivered on the 10th September, 2002. The Defence of the first named defendant was delivered on the 5th November, 2002. Notice of Trial was served in November, 2002 following which Notice of Discontinuance against the third named defendant was served in February 2003. The first named defendant represents St. Vincent's Hospital in Dublin where it is alleged the plaintiff received negligent medical treatment. The second named defendant is a consultant cardiologist who treated the plaintiff in that capacity while in St. Vincent's Hospital.
By Notice of Motion dated the 19th April, 2004, the plaintiff applied to the High Court seeking the court's directions in respect of the plaintiff's obligation to disclose the reports of its medical experts intended to be called at trial to give evidence in relation to issues in the proceedings. The motion seeking directions was one brought pursuant to Rule 47 of S.I. 391/1998, which provides that where one party alleges that another has failed to comply with the requirement to disclose reports or statements under S.I. 391/1998, an application may be made to the Court seeking directions in relation to any such alleged default.
The application was grounded on the affidavit of the plaintiff's solicitor, Mr. Michael Boylan, who deposed that the plaintiff's claim arose out of events which occurred after the plaintiff was admitted to St. Vincent's Hospital on the 16th November, 2000. The plaintiff had a prosthetic aorta valve inserted in 1991 and was on long term oral anti-coagulation therapy with Warfarin. On the 16th November 2000, the plaintiff was admitted with a history of dizziness, high grade pyrexia, headaches and lethargy and a diagnosis was made of endocarditis associated with staphylococcus aureus septicaemia. On the 28th November, 2000, the plaintiff had inserted a right internal jugular catheter and on the 29th November, 2000, the plaintiff started to bleed excessively from the site of the catheter insertion and developed a large localised haematoma which did not respond to local pressure bandaging and continued to ooze. He also developed severe headache and loss of visual fields. It was further deposed that negligence on the part of the defendants in failing to consider the effects of high dose Clexane therapy along with the effects of Warfarin precipitated a cerebral bleed which occurred on the 29th November 2000. The alleged failure to monitor the Clexane therapy allegedly caused or permitted the plaintiff to continue to bleed inter-cerebrally without detection and without a reversal of the anti-coagulant therapy for a prolonged period as a result of which he suffered catastrophic injuries.
Mr. Boylan was consulted by the plaintiff's wife in February 2001 at which point the plaintiff was still an in-patient in the National Rehabilitation Hospital in Dunlaoghaire. Because he was aware that the plaintiff had suffered serious neurological damage, Mr. Boylan sent such of the plaintiff's records as were then available to Dr. Peter Harvey, consultant neurologist to the Royal Free Hospital and of Harley Street in London for the purpose of obtaining his preliminary views on the issue of liability in the proceedings.
Dr. Harvey furnished a report on the 1st August, 2001, setting out his preliminary views, but making it clear at the time that the expert views of a number of other specialists would have to be obtained before he could express any final opinion. Thereafter Mr. Boylan obtained a report from Professor Sam Machin, a haematologist at University College Hospital in London. Following receipt and consideration of these reports, it was felt the plaintiff had a good cause of action and papers were forwarded to counsel for the purpose of drafting a statement of claim and appropriate particulars of negligence and breach of duty.
Even though further reports from a range of experts were obtained following the delivery of the Statement of Claim, the particulars of negligence and breach of duty have not been amended in any way in consequence. In April, 2004, Dr. Harvey provided a further detailed medical report in respect of which Mr. Boylan states as follows:-
"I believe and have been informed by Dr. Harvey that his views as to liability and causation have evolved and developed since he furnished his preliminary report as a result of consulting with the other experts in the case. The views as expressed in his final comprehensive report are more refined and informed than they were at the time of his preliminary report and take account of information obtained from the other experts, views expressed by them which were not available to him originally, together with the clinical history obtained from Mrs. Payne. Furthermore, the drug administration chart from the hospital which had been lost, has now been reconstructed by the hospital from pharmacy records and this had also been helpful to Dr. Harvey."
Mr. Boylan then sought the directions of the court to ascertain whether or not he, as legal advisor to the plaintiff, was now obliged to disclose to the defendants Dr. Harvey's preliminary report of 2001 in circumstances where it was being contended that Dr. Harvey's report of April, 2004, would form the basis of his direct evidence to be given at trial.
In the course of his affidavit, Mr. Boylan also deposed that Dr. Harvey would comment on the defendant's expert reports at a later stage for the assistance of counsel in the cross-examination of the defendants" medical experts. In those particular circumstances, Mr. Boylan sought further guidance from the court as to whether or not he was obliged under the definition of "reports" as outlined in S.I. 391 to also disclose Dr. Harvey's written observations on the defendants" case.
In conclusion, Mr. Boylan contended and stated that he had been advised by counsel that only Dr. Harvey's final report containing the substance of the evidence intended to be adduced by him required to be disclosed to the defendants. That, it was argued, was sufficient to ensure that the interests of justice were protected, balancing on one side the plaintiff's right to legal professional privilege and on the other those interests of justice which require the avoidance of trial by ambush or surprise.
The matter was heard before Dunne J. in November 2004, who delivered a written judgment on the 17th December 2004. In her judgment, the learned trial judge held that the plaintiff was...
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