High Court of Ireland Decisions

1. The Plaintiff in this action claims damages for personal injuries, loss and damage which she suffered by the alleged negligence and breach of duty of the Defendant or her servants or agents arising out of the treatment which she received from the Plaintiff who was her general practitioner.

2. The Plaintiff's claim can be summarised as follows. She says that she was a patient of Dr. O'Connell's between the years 1989 and 1992. In 1989 she had problems for which she received treatment from Dr. O'Connell. The treatment included the prescription of pain killers and steroids. She reacted to this treatment and required admission to St. Vincent's Hospital where she came under the care of specialists. On discharge from hospital, she says, in 1991 she received further treatment from the Defendant who again put her back on steroids when she had a very severe reaction. In broad summary the negligence alleged is that the Defendant failed to recognise that it was improper, in view of her previous reaction, to prescribe steroids and the Plaintiff claims the personal injury, loss and damage that resulted.

3. The Plaintiff says that after she had the reaction she returned to Dr. O'Connell, she made a complaint to her and said that she, Dr. O'Connell, was responsible and that Dr. O'Connell suggested that she write down all her complaints and in fact gave her as a precedent a letter (written by another patient) which the doctor suggested she might use. The Plaintiff says that she used this precedent, completed, first of all a rough draft, then a full letter of complaint which she says she posted to Dr. O'Connell marked "personal and private". She subsequently visited the doctor but made no reference to the complaints in her letter on that occasion.

4. A severe conflict of evidence arises in that Dr. O'Connell denies having received this letter as also does her secretary, Ms. K. Nolan. She says that the first that she knew of any dissatisfaction on the part of the Plaintiff was on the 13th May, 1996 when she received a letter from the Plaintiff's Solicitor. The summons, although issued beforehand, was not served until that date because the Plaintiff's Solicitor was experiencing difficulty in obtaining medical advices supporting the Plaintiff's claim.

5. The matter now comes before the Court by way of Motion pursuant to Order 8, Rule 1 seeking to renew the summons, it having expired after twelve months, namely, upon the 29th April, 1995.

6. In his judgment in Baulk -v- Irish National Insurance Company Limited , 1969 I.R. p.66, Walsh J. refers to the Supreme Court decision in Armstrong -v- Callaghan , (Supreme Court, 5th February, 1967) in which the Supreme Court decided that the fact that the Statute of Limitations would defeat any new proceedings "could itself be a good cause to move the Court to grant the renewal". One of the features of the present case is that since the issue of the summons may well have post-dated the last treatment by a period in excess of three years, the summons may well be outside of the limitation period provided by the Statute of Limitations. However, this is a matter which may fall to be decided on another occasion. What I have to decide is whether, in the words of Mr. Justice Walsh in Baulk -v- Irish National Insurance Company , "any injustice would be done, in the wide sense of the term, to the defendants by granting the renewal in this case".

7. The principles in Baulk -v- Irish National Insurance Company were considered by Barron J. in Prior -v- Independent Television News Limited , 1993 1 I.R. 339 and, having considered the judgment of O'Dalaigh C.J. in McCooey -v- Minister for Finance , 1971 I.R. 159, Barron J. concluded that:-

8. I believe that this is the correct test.

9. In this regard the evidence given by Dr. O'Connell in cross-examination is in my view crucial. She said that she had available to her all her records, all referrals to hospital, all discharge summaries and that she remembered most things about her treatment of the Plaintiff. She agreed with Counsel for the Plaintiff that if the matter were to go to a hearing she would be under "no disadvantage".

10. While I can fully appreciate that to have this matter reawakened after such a long period of time is a distressing and disagreeable experience for the Defendant, nevertheless, it appears to me that the test that I must apply is whether the renewal of the summons would work an injustice on Dr. O'Connell. I do not think it would given the nature of her evidence in Court.

11. Accordingly, I make an Order pursuant to Order 8, Rule 1.