Webb v Min for Finance

CourtHigh Court
JudgeMr. Justice Herbert
Judgment Date03 December 2009
Neutral Citation[2009] IEHC 534
Docket Number[No. 4343 P. 2007]
Date03 December 2009

[2009] IEHC 534


[No. 4343 P. 2007]
Webb v Min for Finance
[2009] IEHC 534.





RSC O.28

KROPS v IRISH FORESTRY BOARD LTD & RYAN 1995 2 IR 113 1995 2 ILRM 290 1995 9 2649







Amendment - Further particulars of negligence - Application to amend pleadings to include further particulars of negligence - Whether amendment represents new and distinct cause of action - Whether defendant prejudiced by proposed amendment - Krops v Irish Forestry Board Ltd [1995] 2 IR 113; Bell v Pederson [1995] 3 IR 511; Rubotham (an infant) v M & B Bakeries Ltd [1993] ILRM 219; Woori Bank v Hanvit LSP Finance Ltd [2006] IEHC 156 (Unrep, Clarke J, 17/5/2006) and Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 28 - Application granted (2007/4343JR - Herbert J - 3/2/2009) [2009] IEHC 534

Webb v Minister for Finance

Facts further particulars of negligence were rejected by the defendant. Following that, the plaintiff sought an order, pursuant to the provisions of O. 28 of the Rules of the Superior Courts 1986, permitting him to amend the pleadings in his personal injuries action to include further particulars of negligence and breach of duty, primarily pleading that the defendant had owed a duty to provide the plaintiff with a comprehensive medical service, including monitoring of any injuries, which it had failed to do. the defendant resisted the application on the basis that the new particulars constituted a new cause of action of medical negligence which would be statute barred.

Held by Mr. Justice Herbert in allowing the amendment sought that the plaintiff by the proposed "further particulars of negligence" was not seeking to pursue a new cause of action in the form of a medical negligence claim against the Army Medical Corps, which would be statute barred at the date of the order sought and that pleadings which initiated an action, carried with them from the time they were issued or delivered the potentiality of being amended by the Court. The wide power conferred on the Court by O. 28 of the Rules of the Superior Courts to permit an amendment of pleadings at any stage of the proceedings for the purpose of determining the real question in controversy between the parties, was to enable the court to do justice between them. That if the court was satisfied that there was no irremediable prejudice to the other party, it could permit an amendment even though it was fundamental and introduced into the action a claim for relief which had not originally been made. The new claim was germane to, connected with and, arising out of the original cause of action and was not a new cause of action and would not cause the defendant prejudice.

Rubotham (Infant) v. M and B Bakeries Limited [1993] I.L.R.M. 219, Krops v. Irish Forestry Board Limited [1995] 2 I.L.R.M. 290, Bell v. Pederson [1996] 1 I.L.R.M. 290 and Croke v. Waterford Crystal Ltd. [2005] 2 I.R.383 applied.

Reporter: P.C.

Mr. Justice Herbert
delivered on the 3rd day of December 2009

The plaintiff's claim in this action arises out of a road traffic accident which occurred on the 22nd April, 2002. The plaintiff claims that he was standing in the turret of an armoured personnel carrier travelling along the public roadway when it was struck from behind by another armoured personnel carrier. An Ordinary Civil Bill was issued on behalf of the plaintiff on the 26th April, 2004. The particulars of negligence and breach of duty contained in the Indorsement of Claim relate exclusively to the manner in which the servant or agent of the defendant drove the armoured personnel carrier which collided with the one in which the plaintiff was travelling.


In the particulars of Personal Injuries it is pleaded that the plaintiff came under the care of the Army Medical Corps. He was found to have suffered shock, pain, general bruising and, moderate to severe soft tissue injury in the areas of his neck and low back. It was anticipated that the plaintiff would make a full recovery. However, as he continued to suffer pain and discomfort the possibility of other personal injuries had to be left open. In April, 2003, the plaintiff was passed fit for service in the army. He was allocated light duties and declared medically unfit for volunteer service overseas.


On the 14th May, 2004, the Solicitors for the defendant submitted a very extensive request for particulars. On the 11th June, 2004, a notice of further particulars of personal injuries was delivered on behalf of the plaintiff and was accepted by the defendant. It was stated that despite medical treatment the plaintiff continued to suffer low back pain with the addition of pain in his left buttock radiating into his left leg. He also suffered paraesthesia and numbness in his left leg. A consultant orthopaedic surgeon had found evidence of a lumbar disc protrusion on clinical examination. On the 2nd September, 2004, the solicitors for the plaintiff furnished replies to the defendant's request for particulars.


A defence was delivered on behalf of the defendant on the 20th December, 2004. It was denied that the plaintiff sustained the alleged or any personal injuries, loss, damage, inconvenience or expense. No admission was made with regard to the special damage claimed and the plaintiff was put on full proof thereof. It was pleaded that the plaintiff had failed to mitigate his loss. No particulars of this latter plea were furnished in this defence. On the 1st November, 2006, the solicitors for the plaintiff sought particulars of the respects in which it was alleged that the plaintiff had failed to mitigate his loss. From the papers furnished to the court, it does not appear that any reply was received from the defendant to this request.


On or about the 13th November, 2006, an application was made to the Circuit Court for an order transferring the case to the High Court. This application was grounded on an affidavit of the plaintiff. At para. 5 of this affidavit it was stated that an MRI Scan carried out in 2005 showed a disc protrusion at the L5/S1 level which Mr. J. Rice, a Consultant Orthopaedic Surgeon, advised the plaintiff in a report dated the 8th June, 2005, was probably due to the road traffic accident on the 22nd April, 2002. At para. 7 of his affidavit the plaintiff stated that he was scheduled to appear before the Army Medical Board and that this Board might recommend that he be discharged from the army. At para. 8 of this affidavit the plaintiff averred that he had been advised by Senior Counsel that the level of special damage claimed brought the case into the jurisdiction of the High Court.


This transfer application was opposed by the defendant. In an affidavit dated the 19th January, 2007, Louise Boughton, Solicitor in the State Claims Agency, stated that no particulars of special damage had been furnished. She claimed that it was just speculation on the part of the plaintiff that he would be discharged from the army. She averred that there was no medical basis to justify a transfer of the case from the jurisdiction of the Circuit Court to the High Court. She stated that the plaintiff had been examined by Dr. Michael Kelly on the 31st May, 2004, on the 8th March, 2005 and on the 10th August, 2005. He found that the plaintiff's cervical spine was normal and that he had a full range of neck movements. He considered that the disc protrusion was causing no problems, and that the plaintiff had only suffered a soft tissue type injury in the area of his low back. In his opinion the plaintiff only required a fitness programme to strengthen the muscles in his lumbar area. This deponent further stated that the plaintiff had been examined at the request of the defendant, by Mr. McQuillan, a Consultant Orthopaedic Surgeon, on the 13th September, 2009. He agreed with the opinion expressed by Mr. Rice that the disc protrusion was not compressing any nerve and surgical intervention was not required. There was no structural abnormality in the plaintiff's cervical spine. He considered that any residual effect of the accident on the 22nd April, 2002, was minor at that time. The plaintiff...

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