Toal v Duignan (No. 1)

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1987 WJSC-SC 2248
• Court: Supreme Court
• Date: 01 January 1991

TOAL v. DUIGNAN & ORS

GREGORY TOAL

Plaintiff/

Appellant

and

NIALL DUIGNAN AND THE BOARD OF GUARDIANS AND DIRECTORS OF THECOOMBE LYING-IN HOSPITAL KEVIN FEENEY, NAOMI KIDNEY, MARIE CULHANE, TOMMcMANUS, CHAIRMAN OF THE BOARD OF GOVERNORS OF HARCOURT STREETCHILDREN'S HOSPITAL AND THE BOARD OF GOVERNORS AND DIRECTORS OF HARCOURTSTREET CHILDREN'S HOSPITAL AND MARGARET McGILL

Defendants/Respondents

1987 WJSC-SC 2248

Finlay C.J.

Henchy J.

Hederman J.

279/86

THE SUPREME COURT

Synopsis:

ACTION

Dismissal

Defence - Prejudice - Time lapse - Infant - Injury - Cause of action - Lapse of 23 years - Issue of plenary summons claiming damages for the negligence of the defendants - The plaintiff was born on 21/6/61 with a physical defect which was not treated and which the plaintiff alleged had made him sterile - He did not become aware of his sterility until 1983 - In 1970 the plaintiff had mumps and he was treated by the defendant doctor on that occasion - The plaintiff claimed that his condition had been caused by the negligence of the defendant gynaecologist, who had attended the plaintiff's mother at the birth of the plaintiff, in failing to notice and remedy the defect; the plaintiff also claimed that the defendant paediatrician had been negligent in a similar manner - In 1984 the plaintiff issued a plenary summons in the High Court and claimed damages from the defendant hospital and the other defendants for their negligence - In 1960 the defendant hospital moved from the premises where the plaintiff had been born and now possessed few of the records of the plaintiff's birth; the nurses who had attended the plaintiff's mother during her labour had left the defendant hospital and their addresses were not known; the gynaecologist and the paediatrician had died - In these circumstances the defendants applied to the High Court and obtained (10/7/86) an order striking out the plaintiff's claims on he ground that it would be unjust to compel the defendants to defend the action - The plaintiff appealed against the order - Held that the appeal should be disallowed: ~O'Domhnaill v. Merrick~ [1984] IR 151 considered - (279/86 - Supreme Court - 27/11/87) - [1991] ILRM 135 |T. v. Duignan|

PRACTICE

Action

Dismissal - Inherent jurisdiction - Vexatious claim - Defence - Prejudice - Cause of action - Negligence - Lapse of 23 years - Issue of summons - The plaintiff, who was born in 1961 with a physical defect, claimed damages from the defendant for the latter's negligence in failing to notice and remedy the defect shortly after the birth of the plaintiff - Plaintiff's action struck out - ~See~ Action, dismissal - (279/86 - Supreme Court - 27/11/87) - [1991] ILRM 135

|T. v. Duignan|

Citations:

O DOMHNAILL V MERRICK 1984 IR 151, 1985 ILRM 40

1 JUDGMENT delivered on the 27th day of November 1987by FINLAY C.J. [NEM DISS]

2 This is an appeal brought by the Plaintiff against the Order of the High Court dated the 10th July 1986 made by Keane J. ordering that the proceedings herein as against the first, second, fourth and fifth named Defendants be struck out with costs against the Plaintiff. In that Order it is recited that the third named Defendant was deceased since the commencement of the proceedings and the action has never beenre-constituted,we are informed, against him. The motions in the High Court brought by the Defendants to dismiss the proceedings were based on the lapse of time between the acts of negligence and breach of duty complained of and the institution of the proceedings.

3 In short, the learned trial Judge in the High Court came to the conclusion that in each of the cases with which he was concerned the delay created a situation in which it would be a denial of justice to the Defendants to expect them to meet the claims at this stage, particularly when it was not alleged that they (the Defendants) contributed to the delay in bringing the proceedings and that there was manifest prejudice against the Defendants from the continuation of these proceedings established before him.

4 I have come to the conclusion that the learned trial Judge was correct in the view which he reached and the reasons by which he reachedit.

5 The first named Defendant in this case was at the time of the institution of these proceedings in 1984 theMaster of the Coombe Hospital but he no longer...