Toal v Duignan (No. 2)

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,GRIFFIN J.,McCarthy, J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2334
• Court: Supreme Court
• Date: 01 January 1991

TOAL v. DUIGNAN & ORS

TOAL

v.

DUIGNAN AND ORS.

1990 WJSC-SC 2334

Finlay C.J.

Griffin J.

McCarthy J.

65/89

THE SUPREME COURT

Synopsis:

ACTION

Dismissal

Defence - Prejudice - Time lapse - Infant - Defect at birth - Plaintiff born in 1961 and summons issued in 1984 - Alleged negligence in 1971 - Defendant contended that passage of time rendered it unjust to compel her to defend action - Action not statute barred - Plaintiff's claim to damages for defendant's negligence - Pending trial to establish defendant's alleged failure to give proper medical advice 18 years ago - Plaintiff's claim struck out - Practice - Appeal - Admission of further evidence - Rules of the Superior Courts, 1986, order 58, r. 8 - (65/89 - Supreme Court - 26/7/90) - [1991] ILRM 140

|T. v. Duignan|

HIGH COURT

Jurisdiction

Action - Dismissal - Vexatious claim - Plaintiff blameless - Claim not statute barred - Lapse of time since date of cause of action - Lapse of 18 years making it unjust to compel defendant to meet claim of plaintiff - (65/89 - Supreme Court - 26/7/90)

|T. v. Duignan|

PRACTICE

Action

Dismissal - High Court - Jurisdiction - Vexatious claim - Plaintiff blameless - Claim not statute barred - Lapse of time since date of cause of action - Lapse of 18 years made it unjust to compel defendant to meet claim of plaintiff - (65/89 - Supreme Court - 26/7/90) - [1991] ILRM 140

|T. v. Duignan|

PRACTICE

Appeal

Evidence - Further evidence - Admission - Appeal to Supreme Court - Refusal of High Court to order dismissal of plaintiff's claim - Appeal against interlocutory judgment - Further evidence allowed without special leave - (65/89 - Supreme Court - 26/7/90)

|T. v. Duignan|

SUPREME COURT

Appeal

Evidence - Further evidence - Admission - High Court - Refusal to dismiss plaintiff's action - Appeal from interlocutory judgment - Further evidence allowed without special leave - (65/89 - Supreme Court - 26/7/90) - [1991] ILRM 140

|T. v. Duignan|

Citations:

TOAL V DUIGNAN UNREP LYNCH 13.1.89 1989/3/743

TOAL V DUIGNAN UNREP SUPREME 27.11.87 1987/8/2248

O DOMHNAILL V MERRICK 1984 IR 151

RSC 0.58 r8

WYLIE'S JUDICATURE ACTS P795

HILL V FLADGATE 1910 1 CH 489

DOWD V KERRY COUNTY COUNCIL 1970 IR 27

SHEEHAN V AMOND 1982 IR 253

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 6(1)

PIONEER AGGREGATES (UK) LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1948 2 AER 358

HAMILTON V HAMILTON 1982 IR 466

TOAL V DUIGNAN & ORS UNREP KEANE 10.7.86 (EX TEMPORE)

RSC O.58

PAGE, IN RE 1910 1 CH 489

1 JUDGMENT delivered on the 26th day of July 1990by FINLAY C.J.

2 This is an appeal brought by the sixth, seventh and eighth Defendants originally named in these proceedings, against an Order made in the High Court by Lynch J. on the 13th January 1989, refusing their application to dismiss the proceedings against them herein on the grounds that such a length of time had elapsed between the events on which such proceedings are based and the present, that it would be unjust for the Defendants to be called upon to defend themselves.

3 Similar applications were brought on behalf of the first, third and fourth-named Defendants in this actionbefore the High Court and were dealt with by Keane J. who on the 10th July 1986 made an Order dismissing the proceedings. Against that Order the Plaintiff appealed to this Court and this Court on the 27th November 1987 dismissed that appeal and upheld the Order of the High Court. The reasons for that decision were stated in a judgment delivered by me as a reserved judgment on that date, with which the other members of the Court agreed.

4 Lynch J. in dealing with the applications brought before him in the High Court accepted the principles laid down in the decision of this Court on the 27th November 1987, and having considered their application to the facts of the cases then before the Court, concluded that they did not apply to the fact of these applications and accordingly refused to make the Order dismissing the claim agaisnt these Defendants.

5 In the course of the argument on these appeals a question was raised as to whether the Court hadjurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas.

6 My judgment in the previous appeal in respect of the other Defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J. in O Domhnaill v Merrick 1984 I.R., with which Griffin J. agreed.

7 I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiciton of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular Defendant to defend himself or herself against the claim made. I have also reconsidered the dissent from that view expressed by McCarthy J. in thejudgment delivered by him in the case of O Domhnaill v.Merrick.

8 I adhere to the view expressed by me in the previous appeal in this case that the Court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas a supremacy over the Courts which is inconsistent with the Constitution.

9 If the Courts were to be deprived of the right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an unjust result merely by reason of the fact that the Oireachtas has provided a time limit which in the particular case has not been breached would be to accept a legislative intervention in what is one of the most fundamental rights and obligations of a court to do ultimate justice between the parties before it.

10 That view does not, however, of course mean that this is a jurisdiction which could be frequently or lightly assumed and there can be no doubt that the issue before the Court always remains that which was identified by Henchy J. in O Domhnaill v. Merrick where, at page 557, in the course of his judgment he stated:

"In all cases the problem of the Court would seem to be to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected todefend."

11 I also accept, as I indicated in my judgment on the previous appeal in this case, that the existence of culpable negligence on the part of a plaintiff whose claim has been delayed is of considerable relevance but that it is not an essential ingredient for the exercise by the Court of its jurisdiction.

12 Applying these priniciples to the facts of the present case I am again, of course, satisfied that it must be approached as a case in which the Plaintiff has not got any responsibility for the delay of the actions instituted against the various Defendants. The events which give rise to the claim against these three Defendants are alleged to have occurred in 1971 when the Plaintiff developed a condition of mumps and was attended by the eighth-named Defendant and by her sent into the hospital maintained by the sixth and seventh-named Defendants and there treated, coming again it is claimed subsequent to discharge from hospital, under the care of the eighth Defendant.

13 I will deal with the two appeals that are before this Court in the Order in which they were dealt with by the learned trial Judge in the High Court in his careful judgment.

The eighth Defendant's Motion

14 When this Motion was before the High Court it was dismissed largely on the grounds that whilst the learned trial Judge accepted that the eighth Defendant's recollection "may be very limited" he found that she had not suggested that she had made any efforts whatsover to inquire from her successor in her own medical practice or from her principals in relation to her practice as locum for other doctors as to what records they may have by reference to which she might refresh her memory relevant to the matters in issue in this case. He furthermore laid stress upon the fact that the sixth and seventh Defendants had exhibited records which included a copy of a letter dated the 2nd July 1971 from Dr. Rees of Harcourt Street Children's Hospital to the eighth Defendant enclosing a copy of a letter of the same date to Dr. Culhane, the fifth Defendant, giving details of the Plaintiff's condition on admission tohospital and thereafter whilst in hospital, and his treatment while inhospital.

15 This Court ruled at the commencement of this appeal that the applications were interlocutory in nature and that it was appropriate that in the interest of justice further evidence should be adduced by both sides, both of whom were anxious to have the Court consider further Affidavits which they sought to file.

16 As a result of this the eighth Defendant filed a further Affidavit indicating what I am satisfied were extremely exhaustive inquiries made by her to persons with whom she was associated in the particular form of locum medical practice which she engaged in in 1971 to try and ascertain whether any of them would have records deriving from her own records and supplied to them concerning her examination of the Plaintiff at that time. No such records were available and I do not consider, as was contended, that a failure to obtain oneof the records that might have been available makes this evidence less compelling than I consider it to be. The report referred to by the learned trial Judge as having been sent by Dr. Rees to the eighth Defendant is one which she has no recollection of receiving, and it is of some significance that it appears to have been sent to the address of the...