Sullivan v Southern Health Board

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy
• Judgment Date: 30 July 1997
• Neutral Citation: 1998 WJSC-SC 12464
• Court: Supreme Court
• Docket Number: [S.C. No. 334 of 1993]
• Date: 30 July 1997

1998 WJSC-SC 12464

THE SUPREME COURT

Murphy J

Lynch J

Barron J

344/93

SULLIVAN v. THE SOUTHERN HEALTH BOARD

Between:

Patrick Sullivan

plaintiff/Respondent

AND

The Southern Health Board

Defendant/Appellant

1 Judgment of Mr Justice Francis D Murphy delivered the 30th day of July 1997. [NEM DISS]

2 This is an appeal by the Southern Health Board (the Board) from the judgment of Mr Justice Keane given on the 29th day of July 1993 and the order made thereon by which the learned Judge awarded to the Plaintiff/Respondent, Dr sullivan, the sum of £92,966 as damages for breach of contract.

3 Dr Sullivan was appointed to the post of consultant in medicine at Mallow General Hospital in the County of Cork from the 1st day of April 1981 on the terms of what is called the "Common contract"entered into by Dr Sullivan and the Board on the 17th July 1981. Dr Sullivan had qualified in medicine in University College Cork in 1968. He became an MD in 1985 and a fellow of the Royal College of Physicians of Ireland in 1987. He is and clearly was at the date of his appointment a highly qualified and distinguished medical practitioner. Furthermore it is readily and fully accepted by the Board that he has carried out his duties with efficiency and dedication.

4 Mallow Hospital is one of the institutions maintained by the Board in which health services are provided by them pursuant to the provisions of the Health Acts 1947– 1991. The hospital was opened initially as an army hospital in 1939. It was subsequently a TB hospital and eventually became an acute medical facility in 1960. At the time Dr Sullivan was appointed Dr Joyce was already and had been for some 19 years consultant physician in Mallow Hospital. Dr Sullivan filled an additional post and he and Dr Joyce shared responsibility for providing consultant medical services until the latter developed poor health in the year 1988 and died in September of that year. Mallow Hospital, at the time of Dr Sullivan's Appointment, comprised 103 acute medical beds which were divided roughly between the physicians and the surgeons. The catchment area of the hospital is the north Cork region with a population of approximately 72,000.

5 In the statement of claim it was pleaded that the July agreement contained the express terms following, namely, that:-

6 a (A) The Plaintiff would be required to work for a period of 33 hours per week subject to being available and, when necessary, for an additional period of up to 2 hours after the end of each day's scheduled commitment.

7 b (B) The Plaintiff would be entitled as of right to have available to him from the Defendant reasonable facilities and resources for the proper discharge of his duties.

8 c (C) The Plaintiff would be entitled to 30 days annual leave.

9 d (D) The Defendant would at all times employ a second consultant physician in addition to the Plaintiff at the said hospital.

10 It was then pleaded that in breach of the express terms aforesaid:-

11 a (A) The Plaintiff had been consistently required over a period of years to work hours far in excess of those contracted for.

12 b (B) The Defendant had failed, refused and neglected notwithstanding repeated demands made by the Plaintiff to make available to him reasonable facilities or resources for the proper discharge of his duties.

13 c (C) The Plaintiff had not been afforded his annual entitlement to 30 days leave.

14 d (D) The Defendant had failed refused and neglected since 1988 to appoint and engage a second consultant physician at the said hospital.

15 The plaintiff claimed damages for the alleged breaches of the express terms of the contract aforesaid and also claimed injunctive relief to restrain the continued breach thereof. At the hearing of the trail the claim for injunctive relief was abandoned and the matter proceeded solely as a claim for damages. Furthermore it was recognised that the contract did not contain any express term in relation to the appointment of a second consultant: It was argued that there was an implied term to that effect.

16 As appears specifically from the order made herein on the 29th day of July 1993 the Court assessed damages under the following headings:-

1	Losses sustained by the Plaintiff as a result of the failure of the Defendant to appoint a second physician	£35,654
2	Loss of fess from private practice	£42,312
3	Damages for stress and anxiety caused to the Plaintiff in his professional and domestic life	£15,000
	TOTAL	£92,966

17 These figures reflect precisely those contained in a document ( to which I will refer as "the Revised Claim") referred to in the course of the Plaintiff"s evidence. Counsel on behalf of the Board understandably complained that the figures and information contained in the Revised Claim had not been furnished to the Board prior to the hearing. There was - and there still is - some difficulty in fully comprehending those figures and the assumptions on which they are based. The learned Judge explained (at page 27 Volume 1 of the transcript) his difficulty in reconciling the claim made by the Plaintiff with a letter dated the 24th of July 1992 on which his counsel relied which had made a claim in broad terms for loss due to "locum cover" on the basis that the Plaintiff was at the time operating a one-on-one-off rota.

18 In his judgment the learned trial Judge set out the history of the relationship between Dr Sullivan and the management of the Board and in particular dealt with the deterioration of the conditions in the hospital and the facilities available there. The learned Judge found - and indeed it was not seriously disputed - that in the year 1987 serious problems began to arise at the hospital as a result of policy decisions made at government level to cut back the budget available for health services. The learned Judge referred to specific deficiencies which existed in the period between 1987 and 1991 including defective x-ray screening equipment; obsolete laboratory equipment; faulty lifts and damaged building structures. Perhaps even more obvious was the dramatic reduction in the number of beds available in the hospital. In 1987 there were 103, in 1988, 52 and in 1989, 40. Again there was staffing shortages. No permanent matron appointed after 1988; a shortfall in the number of nurses; radiographers and physiotherapists. In 1989 a question arose as to whether Mallow Hospital would be continued or the services provided there relocated in Cork city. Undoubtedly a change took place in mid 1989. It is not clear whether that was due in whole or in part to the decision of Mr Justice Gannon in O'Callaghan .v. Southern Health Board, a judgment delivered on the 8th of May 1989. Politicall changes had resulted in further funds being made available to the Board. In any event from mid 1989 steps were taken to remedy most of the specific deficiencies identified in the judgment of the learned trial Judge. However it would seem that unsatisfactory conditions prevailed up to the 16th of January 1991 when a delegation from the Irish Hospitals Consultants Association visited the hospital and reported that:-

"The state of Mallow Hospital at present is both disgraceful and dangerous. There is a disgraceful waste of resources with a well qualified consultant, medical, non consultant medical, nursing and paramedical staff working at half capacity because of lack of beds, lack of equipment and lack of administrative support. The service which is offered by the hospital is, despite the best efforts of the staff, both inadequate and sometimes dangerous because of the lack of basic investigatory facilities and insufficient support staff. This risk is compounded by the completely inadequate number of beds available."

19 The reversal of the original trend was exemplified by the fact that before the action came for hearing the number of beds had been increased from the low of 40 to its then level of 64. There was, however, the difficulty that there was no separate male medical ward and had been none since 1989.

20 The July agreement in clause 7.6 acknowledged that Dr Sullivan had certain rights specified in that clause and in particular:-

"Your (Dr Sullivan"s) right to have available to you from the Southern Health Board reasonable facilities and resources for the proper discharge of your duties."

21 whilst the learned trial Judge dealt with the deterioration of the conditions in the hospital in conjunction with other issues I have no doubt whatever that the deficiencies and inadequacies in the facilities available in the hospital in the period between 1987 and 1991 constituted a breach of clause 7.6 of the July contract. The fact that the management of the hospital was dedicated to their work and that the Board itself was powerless to finance the appropriate improvements and maintenance does not alter the position. The Board had entered into a specific contract and had failed to perform it. On that basis I take the view that the Board were clearly liable to the Plaintiff in damages.

22 The failure to replace Dr Joyce in September 1988 was presumably due to the financial stringency affecting the Board at the time. The failure to do so was one of Dr Sullivan"s major grievances and the question whether the Board owed him a contractual duty in that behalf was a crucial issue in both the High Court and this Court. It must be emphasised that the issue was whether the Board was bound to appoint a second permanent medical consultant. In fact medical consultants were appointed to replace Dr Joyce. The first appears to have been appointed some time after Dr Joyce"s retirement and to have continued until September 1991 when he was replaced by the present incumbent, Dr English. These two appointments were medical consultants who were appointed to act independently of Dr Sullivan and not as a...