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Brennan v. Western Health Board [1999] IEHC 162 (18th May, 1999)

THE HIGH COURT

1996 No. 6497p

BETWEEN

SUSAN BRENNAN

PLAINTIFF

AND

THE WESTERN HEALTH BOARD AND THE COUNTY COUNCIL

OF THE COUNTY OF ROSCOMMON

DEFENDANTS

JUDGMENT of Mrs Justice Macken delivered the 18th day of May 1999

1. This application is brought by the Defendant who seeks to strike out the claim of the Plaintiff in these proceedings on the grounds of inordinate and inexcusable delay in the commencement of the within proceedings.

2. The Plaintiff was born on the 12 ^thSeptember, 1975 and was delivered at Roscommon County hospital, which was under the control of the Defendant. Her mother was attended by the County Surgeon by a Dr Casey, anaesthetist a Mrs Mary Early, midwife and certain other staff. Her mother was in labour at the time of admittance. The Plaintiff was delivered as a breech baby.

3. The Plaintiff was detained in the Defendant's hospital after her birth, in an incubator, for a period of three weeks and was then discharged. The Plaintiff's mother was discharged about one week after the birth of the Plaintiff.

4. The Plaintiff was, on the recommendation of the District Nurse, referred to a general practitioner in early 1976 and he, in turn, referred the Plaintiff for paediatric assessment by a Dr Donovan and the Defendant's hospital.

5. Essentially since early in 1976 the Plaintiff was under medical care and was at an early stage diagnosed as suffering from cerebral palsy. It is unnecessary for me to go into any of the Plaintiff's medical history, but it is alleged in the Statement of Claim that (a) the Plaintiff was the subject of a difficult breech delivery, (b) that there had been a delay in the delivery of the head and (c) that the Plaintiff had experienced "twitching" for several days following delivery. The Statement of Claim also alleges that upon examination, the Plaintiff's nervous system showed that gross and fine motor movements were retarded and that the Plaintiff had sustained brain damage due to cerebral anoxia secondary to the alleged difficult breech delivery.

6. The Plaintiff came of age in the month of September 1993, and under the ordinary rules relating to the limitation period, was entitled to commence proceedings for, as here, negligence, at any time prior to the month of September, 1996. The sequence of events, so far as the pleadings go, is as follows;

7. On the 22nd July, 1996 the Plenary Summons issued;

8. On the 13th November, 1996 an Appearance was entered;

9. On the 17th February, 1997 the Statement of Claim was delivered;

10. On the 26th June, 1997 a Defence was delivered;

11. On the 24th July, 1997 a Motion for Discovery issued;

12. On the 13th March, 1998 the Motion for Discovery was struck out and costs were awarded to the Plaintiff;

13. On the 23rd November, 1998 the Motion now under consideration issued, grounded on an Affidavit sworn on the 11th November, 1998.

14. There is, according to the Defendant, in moving this Application, another key date, which is the 10th May, 1996, the agreed date on which the Defendant was first notified of a possible claim in negligence by the Plaintiff. By letter of that date, the Plaintiff's Solicitors sought from the Defendant, the medical records in relation to the Plaintiff's delivery of her mother, and in relation to the pre and post natal care of the Plaintiff.

15. The Defendant, in support of its application to strike out the Plaintiff's claim, for inordinate and inexcusable delay, makes two cardinal points. Mr Hanna, S.C., argues that, because of the absence of key personnel, combined with the absence of key documentation, the Defendant cannot properly defend the case, in the circumstances, be required to defend the action. Mr Hanna also pointed to the fact that, at an early stage, the Plaintiff's mother had decided not to institute proceedings against the Defendant, and this decision had been deliberately on her part.

16. Mr Hanna relied on the decision of the Supreme Court in Primor Plc -v- Stokes Kennedy Crowley (1995) I.R. in which the several principles applicable to applications such as this, were enunciated. These principles include the following:

- that the Court has an inherent jurisdiction to dismiss a claim in the interests of justice;

- that it must be established by the party moving the application that the delay was both inordinate and inexcusable;

- that the Court must, if it finds both inordinate and inexcusable delay, exercise a judgment on whether in its discretion, and on the facts, the balance of justice is in favour of or against permitting the case to proceed;

- In relation to this last matter the Court should consider:

- the implied constitutional principles of basic fairness of procedure;

- whether delay or the special facts is such as to make it unfair to the Defendant to allow the action to proceed and to make it just to strike out the Plaintiff's action;

- any delay on the part of the Defendant;

- whether any such delay would amount to acquiescence by it of the Plaintiff's own delay;

- whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendant;

17. The Defendant also relies, on the case of Reidy -v- The National Maternity Hospital unrept'd, 31st July, 1997, in which, it was said, the Court dealt with a case similar to the present case, and in which Barr, J. cited with approval the principles enunciated in Primor, supra. In that case, there was medical evidence to support the Plaintiff's case, the Plaintiff had delayed only until 1989, and there were sufficient records available, although not all records were, in fact, available. On the facts, the Plaintiff's claim was not struck out, despite the time delay.

18. Counsel on behalf of the Defendant in the present case says that the Reidy case can be contrasted even more with the present case, because:

- it is clear the Plaintiff's mother here attributed fault from a very early stage, but took no steps;

- the Plaintiff's mother contemplated litigation on several occasions;

- as of now, there is no evidence to suggest that any medical expert supports the case made against the Defendant and the absence of the same is in stark contrast to the Reidy case;

- if the destruction of its records by the Defendant is accepted as being bona fide at the time, namely, pre 1992, it is per adventure that they had been available to all parties, had there been no inordinate delay on the part of the Plaintiff;

- absent the records relating to the birth of the Plaintiff, it is not possible for the Defendant to verify any of the obstetric history of the Plaintiff's mother;

19. On the other hand, Mr Whelehan, S.C., on behalf of the Plaintiff argues that:

(a) the Plaintiff has a constitutional right to bring a claim against the Defendant, which right is recognised in the legislation, which grants her a right for a period of three years after she has reached her majority, and that she did, in fact, commence her proceedings within a reasonable time frame thereafter.

(b) the Plaintiff further argues that the decision or the failure of the Plaintiff's mother not to issue proceedings is not a matter which can or should be held against the Plaintiff;

(d) that on the contrary the Defendant has done so and has delayed bringing this motion for a period of c. 18 months after the time when it could have done so;

(e) that as to the destruction of documents, this was done deliberately by the Defendant in a management move at a time which is unknown.

(f) that the destruction of documents concerning the Plaintiff's birth does not appear to have occurred pursuant to the programme contended for by the Defendant because the document on which the Defendant relies does not include any reference to documents created by the Defendant in 1975 the year in which the Plaintiff was delivered at the Defendant's hospital;

(g) that in any event if the documents were destroyed by the Defendant, they should not have been so destroyed. The Plaintiff says that when the Plaintiff was referred to the Defendant's consultant, Dr Donovan, in 1976, the records of her birth would have been relevant to her condition both at that time, and since, and therefore ought to have been transferred to her treating doctor, and that had that been done, the Plaintiff - who has been treated since at the Defendant's hospital - would have had full access to records of her delivery;

(h) that the fact that the Defendant had retained records of the delivery of the Plaintiff under the sole name of her mother, and not by reference to the Plaintiff, should not be a factor in favour of the Defendant or against the Plaintiff.

(i) that the absence of such records are at least as detrimental or prejudicial to the Plaintiff as they are to the Defendant, since they might have corroborated the claim of the Plaintiff, on whom the onus lies to prove her case;

(j) that while the obstetric surgeon at the Defendant's hospital was dead, he might also have died shortly after the birth of the Plaintiff, and therefore, his absence is not a deciding factor;

(k) that there are a number of witnesses of the Defendant who remember some if not all of the facts surrounding the birth of the Plaintiff; that these witnesses' evidence will be supplemented by the evidence of the Plaintiff's mother, who was also at the time a midwife;

(l) that the existence of the records of the Plaintiff's delivery are not essential to the claim made by her in the matter;

(m) that it is not incumbent of the Plaintiff to disclose the evidence or the opinion of her medical experts, having regard to the duty on the Plaintiff's legal advisors in relation to the commencement of proceedings of this kind, and that no such obligation should be read as being imposed by virtue of the decision in Reidy -v- The National Maternity Hospital, supra;

20. There are several issues to be considered, as is well established in the case law, both in Primor, supra, and in the subsequent and earlier cases where similar issues were considered. Some of the cases involve personal injury, some involve commercial claims. Some involve delay prior to the hearing of an action, and some are confined to delay since the commencement of proceedings and some are a combination of both.

21. Here, the Plaintiff was born in late 1975, and the proceedings were commenced in July, 1996. On its face, that is inordinate delay by any means of measurement. But the Plaintiff, through her Counsel, says that when it is viewed from the correct legal perspective, namely, the date by which the Plaintiff was obliged to commence any proceedings, there is no inordinate delay. The Plaintiff came of age in 1993. The evidence was that not long after that she approached a Legal Aid Centre with a view to seeing whether she would be entitled to fee legal aid in respect of her claim, but was informed of difficulties about cost. She apparently approached a different Legal Aid Centre about her claim, but did not receive any different advice, and the Plaintiff did not have the finances necessary to commence proceedings. The Plaintiff's mother, during the course of consulting with the Plaintiff's solicitor on record, on a different matter, was informed that that solicitor would be prepared to act for the Plaintiff. It is said this sequence is not inordinate.

22. Is the actual delay between 1975 or 1976 and 1996 inexcusable? It seems to me that to consider that, it is necessary to have regard to two matters. The first is whether, in the context of a claim which arises while a Plaintiff is a minor, the question of inexcusability or otherwise of delay is one which is to be confined to the role played by the Plaintiff in the delay, or whether a minor Plaintiff is fixed with the failure on the part of a parent or guardian to commence proceedings, or with the facts giving rise to inexcusable delay over which the parents or guardians had control or is it a question looking at overall delay howsoever arising. It is said by Mr Whelehan on behalf of the Plaintiff that, so far as she was concerned, there was no delay on her part. The Defendant has proceeded on the basis that it is to be assumed that the delay ascribable to her parents must be held against the Plaintiff. The Reidy case was in fact decided on the basis that the documents which surrounded the birth of the Plaintiff existed, to some extent, but would not in any event determine the issue, but also appears to have proceeded on the basis that the delay on the part of the parents was automatically taken into account, without any apparent debate on the matter.

23. What appears from the authorities, so far as they go, on this matter is that delay caused by the servant or agent of a party may not be taken into account unless such servant or agent was under the control of the party against whom delay is pleaded. Here, as in almost all cases involving infants there could be no control by the Plaintiffs over her parents while she was a minor, and no suggestion is made that such was the case.

24. Where the legislature has provided for a limitation period by statute, absent a clear indication to the contrary, I would be slow to imply that whenever there is delay in case which involves a minor, and the delay is on the part of a parent, that delay is ipso facto, to be ascribed to the minor when coming of age. In the present case the delay which is explained by the mother, is not, in my view excusable delay, notwithstanding the difficult circumstances in which she found herself. Any delay on the part of the Plaintiff in the absence of the delay of the mother would be excusable and was, in any event, of such a short nature as not to be inordinate in this case. The matter was considered in O Domnhaill -v Merrick (1084) IR 151, where, in a majority decision, the delay which was considered was "delay on the Plaintiff's side." The Court, in its majority decision, appears to have been considering the issue from the time the Plaintiff came of age, and indicated that she could not remove herself from the actions taken on her part from that time. It is clear that the Court took a strong view saying

"Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of the case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of an infant Defendant or inability on the part of an infant Plaintiff to control or terminate the delay of his or her agent . 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 to defend."

25. The main thrust of the decision in the O Domhnaill case, on the question of the Plaintiff's own delay seemed to be confined to whether or not, from the time she was twenty years old, she took any appropriate steps to prosecute her claim, and to the fact that there was no explanation to show she failed to do so, but then added the words "either during the past six years since the present proceedings were instituted or during the earlier period ." The "earlier period" referred to, as I understand the case, appears to be the period between the time when the Plaintiff was 18 years of age and her 20th birthday. That situation simply does not arise here, because it is conceded on behalf of the Defendant that there was not undue or inordinate delay on the part of the Plaintiff in prosecuting her claim. There is also a discussion in O Domhnaill on the true nature of the limitation period but no definite statement of principle that the delay on the part of a parent is held against the minor when she comes of age. But if I am wrong in my view of the correct interpretation of the O Domhnaill case, I now turn to deal with the matter on the basis that the Defendant says it is unjust on the overall delay that it should have to defend the case, however the delay arose. On that matter I have to have regard also to the decisions of the Supreme Court in Toal -v- Duignan & Others (1991) ILRM 135 and in that case the delay between the birth of the Plaintiff in 1961 and the date of the commencement of a second set of proceedings in 1984 was 23 years. In addition, the paediatrician and the gynaecologist had both died, and there were no clinical notes or records of the birth available. The position is not different in detail to that which arises here. In the present case the position is as follows;

(a) There are no records available as to the delivery of the Plaintiff at birth. This is not due to any fault on the part of the Plaintiff, but is due entirely to the decision of the Defendant to reduce its additional "paper mountain" by some manageable means in 1992, by destroying what appeared to be unimportant or stale documents. Of course, if there had been a connection made between the Plaintiff's condition and her birth - or even a possible connection - then it would clearly have been incumbent on the Defendant to have maintained those records, as part of the Plaintiff's ongoing treatment.

(b) Dr O'Hanrahan the County surgeon, who was present at the birth, has died. However, the anaesthetist who was present at the birth is still alive and in a position to give evidence.

(d) The maternity ward sister is also alive and available to give evidence, as are the Plaintiff's general practitioner and her consultant Paediatrician.

26. There are, however, no notes or records of any description. Is it therefore possible that the Defendant would be in a position to defend itself adequately? In the Reidy case, the Court held that because of the nature of the claim by the Plaintiff detailed records or notes would not be necessary to decide the claim. In the Toal case, while notes were available in the case of one Defendant the Court considered that that Defendant would not adequately defend herself even with notes, after a period of 16 years. In the present case it is said and not seriously denied, that the notes which were made at the time of delivery of the Plaintiff would or could have been of particular help, and on a reading of the Statement of Claim, and the nature of the case which is pleaded, it seems clear that the events surrounding the arrival of the Plaintiff's mother at the hospital, and in particular her stage of delivery and the precise turn of events during the course of delivery are all of crucial importance to the Plaintiff's claim. Absent those notes, it seems to me that the Defendant would be put into an impossible position in seeking to defend itself. While it is true that the Plaintiff's mother may have a good recollection of events, and was a midwife, and while it is just as true that the present live witnesses for the Defendant might also be in a position to give oral evidence as to some or other of the events of so long ago, nevertheless what did or did not happen - and which would be recorded on the charts or records - is likely to be essential, and these no longer exist.

27. Having regard to the foregoing, I reluctantly come to the view that the case cannot be defended properly by the Defendant. I say this being wholly bound by the decisions of the Supreme Court in O Domhnaill -v- Merrick and in Toal.