O'Sullivan A Person of Unsound Mind Not So Found v The Health Service Executive

CourtHigh Court
JudgeMr. Justice Kevin Cross
Judgment Date11 November 2020
Neutral Citation[2020] IEHC 596
Docket Number[2018 No. 5942P]
Date11 November 2020

[2020] IEHC 596

Kevin Cross

[2018 No. 5942P]


Judgment delivered by Mr. Justice Kevin Cross Wednesday the 11th day of November, 2020

This is an application by way of notice of motion by the defendants for an order dismissing the proceedings because of, first of all, inordinate and inexcusable delay and/or on the basis that a fair trial is not reasonably possible and/or that to require the defendant to defend the claim would be unfair and unreasonable etc.


The trial was originally specially fixed and listed for trial in July 2020 and it was adjourned due to COVID and then it was listed again for the 22nd October, 2020 but had to be adjourned again due to the further imposition of the COVID regulations.


The defendants brought the motion herein dated the 12th October, 2020 for hearing at the trial. When the trial date had to be adjourned for the second time an application was made by the defendants and opposed by the plaintiff to detach the motion from the trial which application I granted and the motion for hearing on the 10th November, 2020.


I had the benefit of two affidavits from the plaintiff and two from the defendants. I also had the written submissions by both parties and the oral submissions by Mr. Hanratty on behalf of the defendant and Mr. Treacy on behalf of the plaintiff, both of the Inner Bar.


The plaintiff, a person of unsound mind not so found, claims that she was physically and mentally incapacitated due to the circumstances of her birth on the 9th May, 1977. The plaintiff claims negligence against the defendant and claims that the plaintiff's mother presented herself to the Carrick-on-Suir Hospital, a small local hospital on the 8th May, 1977 and advised the nurse in attendance, Nurse Anthony of a bleed that she had during the previous night. The hospital, as I said was a small local facility which had two maternity beds and did not have any resident doctor available but there was a local GP on call.


The plaintiff was admitted under the care of Nurse Antony and during the night she had a further bleed and the night nurse, Nurse Cox, phoned the doctor in charge and he arranged for the plaintiff's mother to be taken by ambulance to Clonmel Hospital. The ambulance came from Clonmel a journey of approximately 30 minutes and on its return as they approached Clonmel the plaintiff was born in the ambulance and she and her mother were apparently both ill and subsequently the plaintiff suffered significant seizures.


It is claimed in the proceedings that the plaintiff's mother ought to have been transferred to Clonmel or a suitable hospital at once when she presented with the bleed or certainly earlier as she had other apparent bleeds before Nurse Cox came on duty and it is claimed that the defendant was negligent. Liability and causation are both denied.


The plaintiff's mother may have contacted the plaintiff's solicitor in 2011 in any a warning letter was issued in 2018 and the pleadings were started by summons dated the 2nd July, 2018. There is no complaint of the speed or progress of the case since the initiation of the proceedings.


While the motion complains of both unreasonable and inexcusable delay and therefore by implication the principles established in the Rainsford v. Limerick Corporation [1995] 2 ILRM 561 and Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. at p. 459 cases, Mr. Hanratty made it clear that he is in effect basing his application on the grounds of O'Domhnaill v. Merrick [1984] I.R. p. 151.


The defendants submit that they, either will not get a fair trial or that it would be a breach of fair procedures to require the defendants to defend the claim due to the lapse of time.


The defendants also submit that there has been no attempt to explain the delay between 1977 and 2018 and contend that they have no obligation to bring this application at any time before they did so and are not responsible for any delay.


The defendants submit that in order to defend it is necessary for them to show that there was not any breach of duty of care or that any breach of duty was not the cause of the injury. In order to do this, they submit, they must have available the factual information which was identified by Mr. Hanratty as the oral evidence as to the circumstances of the plaintiff's residence in Carrick hospital and of her birth. They submit that this oral evidence is necessary in relation to the issue of liability.


The defendants further submit that documentary evidence is necessary in relation to the issue of causation. Apart from the caveat that it is not necessary for the defendants to prove anything, rather the plaintiff must prove everything in issue, these are not, on the face of it unreasonable submissions to make.


The defendant further submits that the written records are incomplete. There is no doubt that the records in Carrick-on-Suir Hospital taken in 1977 are not as they would be today and there is no dispute about that. However, there are two nursing records, one signed by Nurse/Midwife Anthony who was on duty during the day and the other by Nurse/Midwife Cox who was the night nurse on duty.


The defendants complain that there are no ambulance records available and further that there are no records available from the hospital in Clonmel which were apparently destroyed at some stage by a fire. The plaintiff's mother remained in Clonmel Hospital being treated for some two months after the plaintiff's birth.


Accordingly, the defendant's claim prejudiced in relation to the alleged deficit in oral evidence and in relation to the deficit in notes the latter deficit being related to causation.


In relation to the oral testimony, Nurse Anthony is now retired and the defendants believe her to be unwell and they are not disposed either to interview her or to call her as a witness as they have been advised that she may upset over any approach to her.


Nurse Cox is available and gave two statements to the defendants, one by telephone and the other in a more formal consultation. She also gave one statement to the plaintiff. The defendants complain that Nurse Cox has given contradictory statements and have decided not to call her. The plaintiff has, after their consultation decided that they will call her. In the absence of oral evidence, the defendants contend that they cannot properly defend the liability aspect of the case.


In the absence of documentary evidence, the defendants claim that they are prejudiced also in defending the issue of causation.


The plaintiff responds first of all that the defendants ought to have made their application earlier and that the application should be dismissed on that basis alone as the case was ready for trial and specially fixed in July. This application by way of notice of motion was brought on the 12th October and was originally listed for hearing with the trial on its second date the 22nd October and has since been by order of this court “decoupled”.


The plaintiff then claims that the motion on the 12th October was too late. The plaintiff is not arguing for any competing degrees of culpability or lateness in the sense of the Primor authorities but they do contend that the failure of the defendants to bring the application before now when all matters were ready for trial first in July and then in October should require the application to be dismissed on that ground alone.


Second of all and fundamentally, the plaintiff contends that the defendants have not reached the necessary hurdle that the law sets in order to be successful under the principles in O'Domhnaill v. Merrick.


The plaintiff contends that notes in Carrick do exist and while they are not as extensive as they would be today but they are the same notes as would have been in existence had the trial taken place in the 1980s. These nursing notes they submit are reasonable.


The plaintiffs then submit that from the exhibits in the affidavits that it has been established that the ambulance service did not take notes in 1977 and note taking only occurred later. They further then submit that the situation would have been the same whenever the trial was taking place.


It is certainly the case that measurements and scores would never have been taken probably not even today in an emergency ambulance birth situation.


The plaintiff accepts that the notes in Clonmel Hospital have been destroyed but they submit that there is, despite the absence of the notes, a reasonable narrative available as to what injuries the plaintiff and her mother sustained from the recent tests and scans which have been performed by the plaintiff's experts and referred to in the expert reports and the plaintiff contends that these tests and scans reveal what she suffered in 1977 and what her mother suffered or underwent at the time of her birth.


In relation to oral evidence the plaintiff submits that there is full oral testimony from Nurse Cox and that the defendant's decision not to consult Nurse Anthony is a decision they have made and had the defendants wished to consult her that they could...

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