Sullivan v Southern Health Board

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 29 July 1993
• Neutral Citation: 1993 WJSC-HC 4398
• Docket Number: No. 4046p/1990
• Court: High Court
• Date: 29 July 1993

SULLIVAN v. SOUTHERN HEALTH BOARD

BETWEEN

PATRICK SULLIVAN

PLAINTIFF

AND

SOUTHERN HEALTH BOARD

DEFENDANTS

1993 WJSC-HC 4398

No. 4046p/1990

THE HIGH COURT

Synopsis:

CONTRACT

Terms

Breach - Reason - Third party - Assistance - Absence - Obligation of defendant incurred when he was aware that his discharge of the obligation depended upon assistance of third party - No defence to plaintiff's claim to damages for breach of contract - (1990/4046 P - Keane J. - 29/7/93)

|Sullivan v. Southern Health Board|

EMPLOYMENT

Medical practitioner

Hospital - Appointment - Physician - Consultant - Conditions - Deterioration - Remuneration - Public salary and private income - Reduction in private income - Failure to replace colleague consultant - Failure to maintain proper equipment and premises and to provide adequate staff - Stress imposed by necessity to manage medical department alone - Defendant's breach of contract was not excused by his dependence upon assistance of third party - (1990/4046 P - Keane J. - 29/7/93)

|Sullivan v. Southern Health Board|

Citations:

HEALTH ACTS 1947–1991

HEALTH ACT 19701970 PART 2

MCMEAL V MIN FOR HEALTH 1985 ILRM 616

HEALTH ACT 1970 S38

STAUNTON V ST LAURENCES HOSPITAL BOARD UNREP LARDNER 21.2.86 1986/8/1826

HEALTH ACT 1970 S41(1)(b)(i)

DAVIS CONTRACTORS LTD V FAREHAM UDC 1956 AC 696

Keane J.

1 The Plaintiff is a consultant physician who at all times relevant to these proceedings was attached to Mallow General Hospital in County Cork. The hospital is one of the institutions maintained by the Defendants in which health services are provided by them pursuant to the provisions of the Health Acts,1947to 1991.

2 The Plaintiff claims that the Defendants have been in breach, in four respects, of the provisions of the agreement under which he has been employed as a consultant physician and that, as a result, he has suffered damage. The alleged breaches are:

3 (1) the failure of the Defendants to appoint a second consultant physician at the hospital;

4 (2) requiring the Plaintiff to work hours significantly in excess of those which he had agreed to work;

5 (3) failing to make available to the Plaintiff reasonable resources for the proper discharge of his duties;

6 (4) not affording the Plaintiff his annual entitlement of 40 days” leave.

7 The Defendants deny that the Plaintiff's contract contained the alleged terms and say that, if it did, they were not in breach of them. They say that, to the extent that the Plaintiff had any justifiable complaints in the past about conditions at the hospital, these have been remedied and that, in any event, they were the result of decisions taken by the Minister for Health and Comhairle na nOispideal with which the Defendants were obliged in law to comply.

8 The background to the case and the facts, insofar as they are not in dispute, can be summarised as follows. The Plaintiff was appointed to the post of Consultant in Medicine based at the hospital under the Defendants from the 1st April 1981 on the terms of what is called the "Common Contract" which was signed by the Plaintiff on the 17th July 1981. The Plaintiff had qualified in medicine in University College Cork in 1968, became a member of the Royal College of Physicians in the United Kingdom in 1985 and did research work in the United States for some time. He became an M.D. in 1985 and a Fellow of the Royal College of Physicians of Ireland in 1987 and is a member of a number of learned societies specialising in medicine. He has published many papers in international journals. The hospital was opened initially as an army hospital in 1939, was subsequently a T.B. hospital and eventually became an acute medical facility in 1960. At the time the Plaintiff was appointed, there were two physicians, one of whom had been in his position for approximately 19 years. There were 103 acute medical beds, including a four bed intensive care unit and the beds were roughly divided between the physicians and the surgeons. The catchment area of the hospital is, in general terms, the North Cork region, with a population of approximately 72,000. The physician who was attached to the hospital at the time the Plaintiff joined it, Dr. Joyce, developed poor health in the year 1988 and died in August or September of that year.

9 Clause 2 of the Common Contract provides that:

"You (the Plaintiff) are hereby offered an appointment of Consultant in medicine under the Southern Health Board from 1/ 4/1981subject to the terms and conditions specified in this contract and to the documents stated to be appended thereto, these jointly being the contract documents. While not being itself a contract document, the interim report of the Working Party on a common contract and a common selection procedure for Consultants may be referred to in construing the provisions of the contract: a copy of the interim report is enclosed."

10 Clause 4.2 provides:

"On appointment you will hold office under the Southern Health Board; where the appointment is under a Health Board, Part 2 of the Health Act1970will apply to the appointment."

11 Clause 6 provided that the Plaintiff was to be based at the hospital and was to conduct clinics and out-patient work at the hospital. Clause 7.2 provided that:

"The scheduled service commitment of this appointment in respect of eligible patients shall be 33 hours per week. The Consultant shall be liable to be available and to attend, should it be proven to be necessary, for an additional period of up to 2 hours after the end of each day's scheduled commitment."

12 "Eligible patients" are those entitled to free health services under the provisions of the Health Acts.

13 In Clause 7.6, the Defendants acknowledged inter alia the right of the Plaintiff to be consulted by the Defendants on matters of substance in relation to the operation of his department, his right to be involved in the selection process for junior medical staff and:

"your right to have available to you from the Southern Health Board reasonable facilities and resources for the proper discharge of your duties."

14 Clause 9 provided that the principles governing remuneration for the post were as outlined in paragraphs 4.1 to 4.11 of the interim report and also provided for rates of remuneration per hour related to those paragraphs. Clause 12 provided that the Plaintiff could engage in private practice inside and outside the hospital in accordance with paragraph 5.22 of the interim report. Annual leave entitlement was to be 30 working days on the basis of a five day working week from Monday to Friday inclusive. Under the provisions as to "extended duty liability", where the Plaintiff was required to undertake such duty, he was to be allowed two days off for two weekends in four, five days off for three weekends in four and eight days off for four weekends in four.

15 The Plaintiff's evidence was that at the beginning of his appointment, he worked with Dr. Joyce on a "one day on, one day off" basis from Monday to Friday, i.e., he would be on call for the first 24 hours and his colleague for the next 24 hours. They worked on alternate weekends and covered for each other when going on holidays. The provisions of the Working Party report are of some importance in this context: they provided in paragraph 5.12 that when leave was taken at such a time that routine hospital Consultant work was not being performed, the Consultant/Substitute's work was in the nature of "cover". It was envisaged that this "cross cover" could be undertaken by another Consultant in the same speciality in the same hospital as the incumbent Consultant taking the leave, provided the Substitute Consultant was in a position to provide that cover without interference with his work commitment. 5.13 went on to provide that:

"When the leave taken is on such day or such a time when routine hospital Consultant service work must be undertaken, the substitute Consultant will be in the nature of a Locum Tenens to undertake such services and such work as would be undertaken were the incumbent Consultant available. Should the leave day be one of commitment to out-patients, casualty, acute or planning admissions, ward rounds, operation sessions or lists - then, where available and when practical, a substitute Consultant should be employed to undertake these duties in order to maintain the service commitment of the absent Consultant and the productivity of the hospital. If, for valid and true reasons, a Locum cannot be obtained and a Consultant colleague has to undertake all or part of the absent Consultant's work, other than that of cross cover as defined, then that part of that Consultant's work shall be regarded as that of a Locum and remunerated accordingly."

16 The last sentence was the basis of the Plaintiff's claim, subsequently considered in more detail, to be remunerated as a Locum for certain periods in addition to his normal Consultant's remuneration.

17 It is accepted that, since the death of Dr. Joyce, the Plaintiff has been the only permanent Consultant Physician attached to the hospital, although he has generally had the assistance of a temporary Consultant Physician.

18 The Plaintiff's evidence was that it was not until the year 1987 that serious problems began to arise in relation to his work at the hospital which he considered constituted a breach of the express or implied terms of his contract of appointment with the Defendants and which ultimately gave rise to the present proceedings. It is not in dispute that at that time the services being provided under the Health Acts at the hospital were severely affected by the policy being pursued by the Government which involved substantial cuts in the budget available for the health services. In addition to the failure to appoint a second Consultant Physician to the hospital, the cut-backs had other consequences which were of direct...