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THE HIGH COURT

[2004] IEHC 326

[1987 No. 1461P]

BETWEEN

GERARD BUTLER

PLAINTIFF

AND

BRIAN S. REGAN

DEFENDANT

JUDGMENT of Mr. Justice Henry J. Abbott delivered the 1^st day of July 2004

The plaintiff who was then an insurance inspector by occupation was seriously injured in a car crash on 29^th February, 1980. The defendant was at all material times a Consultant Orthopaedic Surgeon attached to Jervis Street Hospital, Dublin and treated the orthopaedic aspects of the plaintiff's injuries received in the car crash in Jervis Street Hospital. The plaintiff initiated proceedings claiming compensation for the personal injuries loss and damage suffered by him by reason of the car crash and for the purpose of these proceedings the defendant wrote and furnished to the plaintiff three medical reports dated 14^th May, 1980, 24^th November, 1980, and 11^th February, 1982.

On 15^th February, 1984, the plaintiff compromised his action in respect of the car crash for the sum of £71,843.10 in respect of general damages and £13,156.90 in respect of special damage together with costs of the proceedings. In these proceedings the plaintiff claims damages for personal injuries loss and damage suffered by the plaintiff by reason of the negligence and breach of duty on the part of the defendant in failing to properly, adequately or fully examine diagnose, treat and advise the plaintiff or report to the plaintiff's legal representatives upon all of the injuries and their likely sequalae as a result whereof the compromise of the action of the plaintiff in relation to his car crash was under value and as a result whereof the plaintiff also suffered personal injuries in the general nature of depression. The defence is a full denial as appropriate with a plea of contributory negligence together with a plea that the plaintiff's action is barred by the operation of the Statute of Limitations and without prejudice to the defence that it is barred by reason of the prolonged, inordinate and inexcusable delay on the part of the plaintiff.

ISSUE OF DELAY

Some of the more important dates in relation to delay in this case are as follows:-

16th February 1987	Plenary summons issued
12th February 1988	Order for renewal of plenary summons
17th June 1988	Plenary summons served
9th September 1991	Plaintiff's notice of intention to proceed
8th October 1992	Plaintiff's notice of intention to proceed
25th January 1996	Plaintiff' notice of intention to proceed
21st November 1996	Statement of claim delivered
28th July 1997	Amended statement of claim
5th November 1999	Defendant's notice of intention to proceed
4th January 2000	Plaintiff's notice of intention to proceed

When this case came into the personal injuries list it was delayed by unavailability of witnesses and the foot and mouth crisis and by notice of motion dated 10^th December, 2001, the defendant sought an order from the judge in charge of the list directing the trial of a preliminary issue between the plaintiff and the defendant as to whether the plaintiff has been guilty or had been guilty of such an inordinate and excusable delay in the prosecution of his claim, as to cause prejudice to the defendant and thereby deprive the defendant of fully and properly defending the claim made against him.

This action came on for hearing before me on 16^th April, 2002, and whereas there was a difference of opinion as between counsel in relation as to whether the judge in charge of the list had adjourned the hearing of the notice of motion in relation to an application for a direction as to a preliminary issue to be heard prior to the hearing action or whether the issue was adjourned to the hearing of the action simplicter as part of the defence in the case. I decided to hear a preliminary application by counsel for the defendant to have the notice of motion dealt with prior to the hearing of the action because, by that stage, it was clear that the defence were alleging that the defendant was unable to give evidence, although the correspondence and affidavits leading up to that date had not been so explicit about this fact.

Having heard evidence from the plaintiff in relation to the delay issue and submissions on behalf of both the plaintiff and the defendant I made a ruling that I would not deal with the issue of delay and prejudice as a preliminary issue but would deal with the issue of delay and prejudice in the hearing as a matter of defence.

It is appropriate that I would set out the reasons I gave for such ruling which are as follows:-

"I can make a decision in relation to the application by Mr. Keane to have the issue of delay dealt with as a preliminary issue made prior to the substantive hearing as between the plaintiff and the defendant …

The point of departure in relation to the issue which I have to decide at the present moment is the order of Johnson J. in respect of a motion by the defendant to have the preliminary issue heard some time ago. I am informed by Mr. Keane Senior Counsel that the order of Johnson J. was that the issue as to whether there should be a preliminary issue should be decided by the trial judge. Mr. McGrath Senior Counsel would have a different recollection of the order of Johnson J., to the effect that the decision was the preliminary issue and the defence of delay were to be part of the defence of the action. To my mind it does not matter which interpretation is put on the order, and I would not require any evidence in relation to what happened in court that day (although there does not seem to be any formal order before the court), for the reason that even if Mr. McGrath's interpretation is accepted, circumstances have now changed, and I hold that the order was an interlocutory order, which could be reviewed by me by reason of changed circumstances, which arise from the fact that Mr. Regan, the defendant, now appears not to be in a position to give evidence.

The matter which assists me greatly in resolving the issue is the correspondence passing between the parties, from the plaintiff's solicitors dated 3^rd April, 2002, to the defendant's solicitor and the defendant's letter of 4^th April, 2001, in reply to that. The letters have been opened to the court already and it is sufficient for me to refer to and quote the part of the reply of the 4^th April, 2001, which impresses me in relation to the defendant's attitude at that time. I quote from paragraph 2:-

'If we are unsuccessful in our application, the subject matter of the preliminary issue, the evidence given by Mr. Regan at the hearing of the preliminary issue would all have to be duplicated in July. If the same judge were to hear the case in its entirety then such a duplication will not occur.'

This indicates to me that the defendants did not have any great difficulty with lack of duplication arising from the delay issue being heard at the one time with the trial of the action.

The situation that the defendants should therefore be considered as from 4^th April, 2001, rather than from 1988 or even before, and without having regard to the long delay of nine years which by any account was quite a long delay. I am at this stage, without reaching a concluded view, somewhat impressed by the quotations from Halsbury Volume 16 opened to me by Mr. McGrath indicating that a defendant does have to shoulder some of the responsibility. Against that is to be taken into account the decision of Finlay C.J. on 4^th February, 1993, in Celtic Ceramics Limited and Others v. IDA and Kenneth Hunt (ex tempore, Supreme Court, 4^th February, 1993) in which, at p. 7 of the report he indicated clearly that it was for the plaintiff who must bring forward this litigation and there were available to him a number of different alternative methods of so doing. I think these are two contrary stands of legal authority which in the end during the course of case I consider that I should balance and resolve, but, certainly, combined at this stage, they do not indicate to me that I should immediately decide to have a preliminary issue in this case.

The fact that I am looking at the correspondence of April, 2001 as indicating that there was a certain agreement that the case should go forward, as suggested by Johnson J., eventually, as one incorporating all issues in the one hearing, is the basis on which I proceed then to deal with the unfortunate set of circumstances where the defendant, Mr. Regan, cannot give evidence. I find that given that circumstances have changed just over the course of a year during which both parties were anxious enough to have the case get a hearing and in circumstances where the case was not heard, through no great fault of any of the parties, but primarily due to foot and mouth, it would seem to me that the case is one where the plaintiff is entitled to go on notwithstanding that the defendant is not in a position to give evidence.

If the defendant had unfortunately died, I accept that under the Civil Liability Act, 1961, the claim of the plaintiff would not abate and would not die with the defendant and the case could have proceeded against the personal representative of the defendant. But, in so deciding, I have to be aware and I think it is important for the parties to be aware, that the court would find itself in a position where it would be inclined to jealously guard the interests of the person under a disability such as the defendant, it is generally regarded as an obligation in relation to a deceased person but I think that any person under a disability would have to have his or her interests jealously guarded by the court in relation to the hearing.

For these reasons, I would refuse the application by Mr. Keane for the issue of delay and prejudice to be dealt with as a preliminary hearing and I would, with some misgivings, accept the solution proposed by Johnson J. that the issue of delay and prejudice would be dealt with in the hearing of the case as a matter of defence. How that is to be done is a matter for the practitioners and I will be listening to any submissions that have to be made from time to time in relation to how that actually will be done. In making my decision I do not minimise the problems that might arise there, but that is the decision."

The case proceeded for a number of days following and evidence was heard.

The following authorities were open to me in relation to delay:-

Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561

Sheehan v. Amond [1982] I.R. 235

Guerin v. Guerin & Anor. [1992] 2 I.R. 287

Primor v. Stokes Kennedy Crowley & Oliver Free & Co. [1996] 2 I.R. 459

Hogan v. Jones & Ors. [1994] I.L.R.M. 512

Southern Mineral Oil Ltd. v. Cooney [1997] 3 I.R. 459

Martin v. Moy Contractors Ltd & Ors. (Unreported, Supreme Court, 11^th February, 1999)

Dunne v. E.S.B. (Unreported, High Court, Laffoy J., 19^th October, 1999)

Margaret Collins v. Bus Atha Cliath (Unreported, Supreme Court, Murphy J., 22^nd October, 1999)

Duignan v. Carway (Unreported, High Court, O'Donovan J., 27^th July, 2000)

Celtic Ceramics Ltd. & Ors. v. I.D.A. & Hunt (ex tempore, Supreme Court, Finlay C.J., 4^th February, 1993)

Ó Domhnail v. Merrick [1984] I.R. 151

Toal v. Duignan (No. 1) [1991] I.L.R.M. 135

Jonathan Kelly v. Edward Cullen and Mid Western Health Board (Unreported, Supreme Court, Barron J., 27^th July, 1998)

Stollznow v. Calvert, (1980) N.S.W.L.R. 749.

The submissions on behalf of the plaintiff consisted of inviting the court to see where the delay, while perhaps inordinate, was excusable and in instances where there was further delay which may be viewed to be inordinate and without excuse, the plaintiff submitted that such disadvantages ought to be considered in the light of conduct by way of acquiescence on the part of the defendants in the conduct of the action amounting to or akin to estoppel, such to disentitle the defendants to have the plaintiff's claim dismissed by reason of delay.

Counsel on behalf of the defendants relied on the dicta of the Supreme Court in Ó Domhnail v. Merrick [1984] I.R. 151, Celtic Ceramics Ltd. & Ors. v. I.D.A. & Ors. (ex tempore, Supreme Court, 4^th February, 1993), Brennan v. Western Health Board & Anor.(Unreported, High Court, Macken J., 18^th July, 1999), and Brennan v. Fitzpatrick & Anor. (Unreported, Supreme Court, 23^rd November, 2000), and stated that the period of time of delay which amounted to inordinate delay as held in these cases were greatly exceeded by the periods of delay in the plaintiff's case. The standard urged upon the court was stated by Denham J. in Brennan v. Fitzpatrick & Anor. at pp. 9-10 as follows:-

"The inordinate delay has given rise to a substantial risk that it is not possible to have a fair trial and the delay is likely to have caused serious prejudice to the defendants. On balance the justice of the situation was in favour of dismissing the proceedings."

The Law

From the authorities it is clear that the principles of law relevant to the consideration of the issues raised in applications for dismissal by reason of delay may be summarised in the criteria set out in the judgment of Hamilton C.J. in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at pp 475-476 as follows:-

"(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) Even where the delay has been inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against proceeding of the case;

(d) In considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are 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,

(iii) any delay on the part of the defendant – because litigation is a two-party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a strike out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) 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,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business."

One of the distinguishing factors of all the Irish authorities cited, is that all deal with the question as to whether there was a substantial risk that it was not possible to have a fair trial á la Brennan v. Fitzpatrick & Ors. (Unreported, Supreme Court, 23^rd November, 2000). The cases are thus concerned with assessment of a risk in advance of a trial. What has to be considered by me in this judgment is whether ex post facto the trial, there was sufficient fairness to satisfy the criteria under the Constitution for a fair trial. In this particular situation where the trial has proceeded to the end of a hearing, two factors emerge which are of considerable weight in deciding how delay should affect the outcome as follows:-

the weight to be given to the fact that, notwithstanding a long delay, the defendant never found it possible to make an application for a dismissal, for lack or want of prosecution or a strike out by reason of delay, and thus led the plaintiff into a situation where the full expense of a lengthy and difficult trial was undertaken and

what test is to be applied by the court in relation to ascertaining whether there was in fact a fair trial in relation to the issues raised in view of the delay and possible prejudices arising therefrom and a quantum leap in prejudice which presumptively and in fact may arise from the inability of the defendant to give evidence and consequent implied inability or severe restriction in relation to giving instructions.

In relation to the second question, posed by me in this judgment, the Irish authorities and the submissions made by the parties have not illuminated what test the court might apply to determining whether the trial satisfied the criteria of fairness indicated by Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and the other cases, when the court subjects the decision as to whether the plaintiff's claim is to be barred for delay having regard for the overall test of having a fair trial, in the event of the plaintiff having passed the other tests relating to a strike out for delay. I considered this test of fairness in the context of the statutory mandate of the Commission to Inquire into Sexual Abuse in the case of dead and disabled persons in Murray and Gibson v. Commission to Inquire into Child Abuse, Minister for Education and Science and the Attorney General (Unreported 27^th day of January, 2004). In that case I examined the manner in which the courts had dealt with claims against deceased persons, at pp. 103 to 108 of the judgment:-

"It is appropriate, therefore, to examine in more detail how the courts have tested the evidence in cases which have been allowed by the courts to proceed against deceased persons. In Babingtons County Court Practice 2^nd in relation to the proofs necessary to obtain a primary degree for the administration of an estate on the application of a creditor he has stated at page 41:-

'A claim against the estate of a deceased person is not to be allowed on the uncorroborated evidence of the claimant: Clegg v Clegg 22 I.L.T.R. 42; Re Harnett 17 L.R. Ir. 543, in which case, Chaterton V.C. said that the rule was of universal application, and did not depend on the character or position of the claimant. Where a deceased person, whose estate was being administered, had accepted a bill, in which the drawer's name had not been filled in, the personal representative of the deceased holder who had filled in the drawer's name was allowed to prove for the amount of the bill without further proof of the debt beyond evidence that the accepter was to some extent indebted to the drawer Re Duffy, deceased, 5 L.R. Ir. 92. Shop-books in the handwriting of the plaintiff are corroboration of the plaintiff's claim; Ward v. Harold 27 I.L.T.R. 115.'

Later when dealing with adjudication of debts and claims against an estate on the taking of accounts under the County Courts (Ireland) Orders, 1890 it is stated at page 357 "The evidence of the claimant must be corroborated". In Carltons, The Jurisdiction and Procedure of the County Courts in Ireland, at p. 1179 it is stated:-

'In proving a claim against the assets of a deceased person, the rule of equity, that the evidence of the claimant must be corroborated, now applies at law as well as an equity – Ferris v Hannah (Circuit Court) 13 I.L.T.R. 127; Re Duffy 5 L.R.I. 92; Boak v Moore 7 L.R.I. 322; Re Harnett 17 L.R.I. 543.'

In Practice and Procedure in Administration Mortgages Suits in Ireland by John W Scanlan (1963) it is stated at p. 53 in relation to proof of debts against the estate of a deceased:-

'Corroboration is not required but it is desirable. There is no rule of law requiring it although there is only the evidence of a living claimant against deceased debtor such evidence, if it is convincing need not be corroborated' (and cites as authorities Re: Harnett (1886) 17 L.R.I. 543, Healey v. Bright [1936] 70 I.L.T.R. 224, Somers v. Erskine [1944] I.R. 368 (Supreme Court), Coughlan v. Corcoran (1950) 84 I.L.T.S.J. 84).

In giving the judgment of the Supreme Court in Somers v. Erskine (No. 2) [1944] I.R. 368 O'Byrne J. at p. 385 of the judgment said:-

'It was also contended by Mr. Walker that this is a claim against the estate of a deceased person, and he relied upon the rule, which he alleges, is recognised in Courts of Equity, that such claims ought not to be allowed without corroborative evidence. He referred us to the statement of this rule by Chatterton V.C. in Re: Hartnett 70 L.R.I.R. 543 at page 547 'The invariable practice of this Court has been for years that claims against the estates of deceased persons cannot be sustained without corroborative evidence'. When, however he was pressed at the conclusion of the case, counsel did not contend that this was essential as matter of law as distinguished from a rule of prudence. Some parts of the plaintiff's case at the trial were not supported by corroborative evidence but, nevertheless, we are of opinion that the trial judge was, in law, entitled to accept these matters on the uncorroborated testimony of the plaintiff, and we see no reason for differing from him on that matter".

The so called rule of prudence might be explained by the following reference in Williams on Executors and Administrators 9th ed. 1893 Part IV Book II p. 1658:-

"It has been said that in the case of a conflict of evidence between living and dead persons there must be corroboration to establish a claim advanced by a living person against the estate of a dead person, but there is no rule of English law laying down such a proposition. The statement of a living man is not to be disbelieved because there is no corroboration, although in the necessary absence through death of one of the parties to the transaction, it is natural that in considering the statement of the survivor, we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the Tribunal which has to try the question, then there is no rule of law which prevents that conviction being acted upon. The rule, such as it is, is a rule of prudence rather than of law, and applies to cases of alleged debt as well as to cases of alleged gift, and in an action tried by a jury it is the duty of the Judge to recommend the jury to disregard the unsupported evidence of the claimant; but if they should decline to do so, and should find for the claimant, quaere if their verdict could be interfered with. In the case of Hill v. Wilson L.R.8 CH 888 which, however, was a case where parol evidence was tendered for the purpose of altering the terms of a written contract made with the deceased, Lord Justice James said: 'The evidence given is the parol evidence of the maker of a promissory note as to a conversation alleged to have taken place between himself and the person to whom the note was given, that person being dead. Even if such evidence be legally admissible for any purpose, the interests of mankind, in my opinion, imperatively require that, unless corroborated, it should be wholly disregarded. Nobody would be safe in respect of its pecuniary transactions if legal documents found in his possession at the time of his death, and endeavoured to be enforced by his executors could be set aside, or varied, or altered by the parol evidence of the person who had bound himself. It would be very easy of course for anybody who owed a testator a debt to say, "I met the testator, and he promised he would not sue," "I met the testator and I gave him the money", "I met the testator, and in the consideration of something he agreed to relieve me". The interests of justice and the interests of mankind require that such evidence should be wholly disregarded.'

In McCarnon v. McCarnon (Unreported, Supreme Court, 13^th February, 1997) Murphy J. noted that the claim of the plaintiff against the estate of the deceased was viewed by the trial judge (Carroll J.) "with a critical eye" and Murphy J. went on to state:-

'As the learned trial judge recognised, judicial decisions have always proceeded on the evidence in relation to claims against the estate of a deceased person should be carefully investigated.'

In Carter v. Ross (Unreported, High Court, Murphy J., 8^th December, 2000) the frequency of claims against farmers or the estates of farmers in respect of promises to pay for work done either by cash or land was highlighted as follows by Murphy J.:-

"In this jurisdiction there is a long history of this kind of situation, because of the age, structure, emigration etc. An example is the situation of the elderly farmer living alone in a small holding and helped by neighbours in the days before social welfare. What often gave rise to great difficulty was that the farmer would then bequeath to the farm to some unknown person or relative living overseas. The courts have always recognised that one cannot convert charity into the right to receive property. But the courts have been satisfied when work had been done by a relative or nephew not just on some general expectation but on a very specific ground that the relative or nephew would be given the land. Normally, there is the problem that the deceased is no longer there to deny the promise."

In neither of the two modern Irish texts the Law of Evidence in Ireland by Caroline Fennell and Evidence by Ruth Cannon and Niall Nelligan is the test for corroboration in a civil claim against a deceased person mentioned although in Phipson, Evidence, 15^th Ed. (2000) it is as stated at p. 306:-

'13-11 It is a rule of practice that courts will not act upon the uncorroborated testimony of such claimants unless convinced that such testimony is true.'

From the footnote and authorities it would seem that this is not the most "stringent" test and probably equates to the test in Somers v. Erskine.

From the foregoing authorities I am of opinion that in the absence of other convincing evidence the courts would be very reluctant as a matter of prudence to allow a claim against a deceased person unless it was corroborated in relevant material respects. This standard bears many similarities in terms of discretion with the standard now applicable to the warning on corroboration to be given at the discretion of the trial judge to the jury in trials relating to the evidence of sexual offence victims under s. 7 of Criminal Law Rape (Amendment) Act, 1990."

From the foregoing I consider that by reason of the position of the defendant who is now presumptively and almost axiomatically prejudiced by reason of his inability to give evidence and hence proper instructions, the corroborative tests applied to claims against deceased persons ought to be applied to him and this view is consistent with the ex tempore judgment given in relation to the direction regarding the question of a preliminary issue in this case. In Guerin v. Guerin [1992] 2 I.R. 287 Costello J. held that the inordinate delay by the plaintiff's parents and by the plaintiff in instituting proceedings should be excused by the court in view of their failure to appreciate that they had a cause of action, coming as they did from a socially-deprived background. The fact that the plaintiff was an ordinary citizen and not a businessman or corporation with many resources was also considered by Finnegan J. in Silverdale and Hewitts Travel Agency Ltd. v. Italia Tour Ltd. (Unreported, High Court, 7^th November, 2000), where he stressed that in considering a party's personal blameworthiness the court must look at the circumstances of the party, he stated at pp 4-5 that:- "In the case of an infant plaintiff this circumstance will most likely justify delay during minority:… [s]uch considerations have little application to the plaintiff in the present case which is a considerable commercial enterprise and must be expected to pursue litigation of a commercial nature with reasonable expedition and to that end take steps to ensure that it's legal advisors act in an appropriately expeditious manner."

An indication as to how the expression "inexcusable" is defined may be seen from the judgment of Geoghegan J. in Truck & Machinery Sales Ltd. v. General Accident Fire and Assurance Corporation Plc. (Unreported, High Court, Geoghegan J., 12^th November, 1999) at pp. 4-5 as follows:-

"Strictly speaking it would seem to me that the excuses relied on should relate in some way to the actual proceedings in hand because an opposing party can hardly be expected to stand aside and wait while the other party resolves its problems which have nothing to do with the litigation. Nevertheless I am satisfied that all the surrounding circumstances including so called excuses based on extraneous activities must to some extent be taken into account and weighed in the balance in finally considering whether justice requires that the action be struck out or allowed to proceed."

Conclusion: Delay

Whereas the delay between issue of plenary summons and delivery of statement of claim may be explained by the difficulty of obtaining a medical report, given the reluctance of Mr. Sheehan to become involved in any litigation, the delay by any standards is inordinate. From the date of delivery of the statement of claim until the case was ready for hearing in 2000 there was further inordinate delay, but from the time the case was ready for hearing the delay may be as much due to listing difficulties arising from various factors including foot and mouth and acquiescence "akin to estoppel" on the part of the defendant. The total delay on the part of the plaintiff in this case is unquestionably inordinate to a very great degree. The question as to whether it is excusable presents a further test by which the conduct of the plaintiff is to be examined, while delay in obtaining medical reports, examination by foreign experts and normal delays of litigation arising from exchange of legal documentation between the parties, may count for a significant part of the delay and render it excusable, a more controversial question arose in relation to a significant part of this delay arising from sheer inertia on the part of the plaintiff to further process the claim and to engage with his claim as one would expect of a reasonable litigant, by reason of a type of mental block akin to depression in respect of which other factors such as gastro-intestinal trouble, work pressures, neighbour troubles and, (to a lesser extent) the pressure of a young family particularly one boy with cerebral palsy. I consider that while the extraneous factors had an impact on the plaintiff and may have slowed down his processing of the claim, I do consider that having regard to the obsessive and perfectionist approach of the plaintiff to his affairs, that the claim itself became an oppressive presence for him in the psychological sense and that the delay, even though at times exacerbated by external factors, still related to causes which to a substantial extent were arising from the action itself.

Consequently I find, notwithstanding the exceptionally inordinate delay, that such delay is excusable from the point of view of determining whether the action should proceed if other conditions for a proper and fair forensic investigation of the allegations of the plaintiff are present. Adding weight to this decision is the consideration that the defendants were guilty of a significant degree of acquiescence "akin to estoppel" from the time the case was ready for hearing. However, in view of the fact that the case was heard in its entirety the court must have regard to the manner in which courts have processed claims against deceased persons, having regard to the inability of the defendant in this case to give evidence and hence effective instructions.

I thus consider that it is appropriate in assessing the evidence in this case that I would set out a template or guide for so doing, having regard to the practice and jurisprudence of the courts referred to earlier in this judgment. This template and guide is as follows,

Evidence of claims by the plaintiff should not be accepted unless:-

(1) It is backed by clear hospital records, doctors' reports, records of the case including counsel's opinion, doctors' reports, hospital records, X-rays and X-ray reports and like documentation.

(2) It is consistent with the numerous letters, memoranda and notes made by the plaintiff not for the purpose of self-corroboration but more from the point of view of discounting the plaintiff's claim if it is not mirrored in detail in the copious documentation created by himself at material times.

(3) There is a clear clinical/mechanical indication of a serious injury from the indicators and symptoms available to the defendant and which were not obvious from a lay person's examination of the report in respect of the more dramatic injury such as the knee and the ankle.

(4) The plaintiff had no opportunity from the documentation presented to him for obtaining a second view in relation to injuries in respect of which the prognosis was manifestly uncertain.

(5) It is consistent with the other evidence in the case.

(6) It is consistent with medical texts of the early 1980s.

Liability

1. Personal Injuries

The plaintiff claims damages for personal injuries allegedly suffered by reason of the negligence of the defendant in failing to advise him of the risk of arthritis by reason of the fact that he alleges that he suffered depression from the disappointment of being told in 1986 by Mr. Sheehan that he had arthritis in the right hip. Mr. McGrath S.C., counsel for the plaintiff, passionately submitted that if persons could receive compensation arising from shock from witnessing either directly or indirectly shocking and catastrophic injuries in circumstances such as are described in Mullally v. Dublin Bus [1992] 1 I.L.R.M.1, why then can persons such as the plaintiff not be more arguably compensated where their shock is more immediately referable to serious injuries suffered by themselves rather than third persons who may be close to them. No authority was put forward in respect of this proposition in this jurisdiction. I am more inclined to accept the authorities put forward by counsel for the defendant and hold that personal injuries are too remote to be compensatable in a claim of this kind. In any event I consider that by reason of the fact that the plaintiff had been exposed to a seriously threatening injury to his ankle and awareness of its consequences even without arthodesis he had plenty of cause to get depressed after his return to work. Instead he was reasonably successful on his return to employment, and highly successful in competitive table tennis. This initial good mental and emotional recovery after a serious injury renders it improbable that he suffered depression on being told of further injuries. It is much more probable that his acknowledged depression arose from other unfortunate experiences.

ECONOMIC LOSS

In McGrath v. Kiely & Anor. [1965] I.R. 497 it was held by Henchy J. that a surgeon who failed to report aspects of injury which resulted in the sum recovered by a litigant in subsequent litigation being reduced, was liable for the loss arising from the reduction of the award by reason of such omission. This authority was not challenged by the defendant and I consider that it rules the facts of the present case, if it is found that the defendant was negligent in complying with his contract to report the plaintiff's injuries to the plaintiff's solicitors for the purpose of the case arising from his car accident.

On the basis of the template described by me above for the testing of evidence in this case, I find that the only basis upon which the defendant is liable is in respect of the non-reporting to the plaintiff's solicitors of the probability or at least the serious possibility of severe arthritis in the right hip leading to a possible or probable necessity for hip replacement at some future date for the following reasons:-

1. The defendant in his reports referred to complaints of the plaintiff relating to clicking and stiffness in his hip.

2. While the orthopaedic ward hospital notes indicate at the 10^th September, 1980 that x-ray was for "[F]emur to include hip. Femur to include knee." The report from the next x-ray dated 19^th November, 1980 reports "fracture in the upper femur shows well advanced union in good position." This shows from the record (which was acknowledged by Mr. B. Lane General Surgeon in the Ward where the plaintiff was being treated in his evidence to be the record of the plaintiff's treatment) that the plaintiff's right hip was a matter to be considered and being considered by the defendant, and that the x-ray report did not specifically address concerns about the hip joint.

3. The evidence of Messrs. Strachan and Norris, orthopaedic specialists for the defendant, that the defendant should have had regard to the force of the impact on the right knee causing disruption of the cartilage of the right hip indicates that the defendant should have had regard to ordinary standards of care with regard to this aspect of bio-mechanics giving rise to a risk of the right hip being affected by the tremendous linear force applied from the knee along the hip giving rise to severe femoral fractures, if he had made any enquiries as to how the fractures occurred.

4. The evidence of Dr. Denis Wood in relation to the transmission of force upwards from the knee to the hip by reason of the linear force created by the partially overlapping head on nature of the collision in which the plaintiff suffered his injuries.

5. I reject the plaintiff's evidence that he made complaints to the defendant about pain in both his right and left hips as I have been unable to find within any documentation emerging from him in either his own notes, his letters or Mr. Robinson's report indicating that he made any complaint about the left hip before or around the time when the defendants medical legal reports were being prepared. The complaint about arthritis in the knee is not something in respect of which the defendant should be blamed as the injury to the knee was patent, severe, and clear to the plaintiff and his legal advisors that complications could arise in the future. In any event the medical evidence in relation to the present condition of the plaintiff's right knee is far from indicating that the injury is anymore serious than it might have been anticipated at the time of reporting of the defendant.

6. Similarly, if the plaintiff now has further complaints in relation to his ankle injury these may not be attributable to the defendant as the ankle injury was severe and patent which prompted the plaintiff to seek and receive a second opinion specifically upon the subject and the defendant cannot be blamed if such second opinion did not elucidate all the possibilities.

7. The additional injuries and fracture to the sternum were not matters according to Mr. Lane for which the defendant was responsible as orthopaedic surgeon and while he did report on broken ribs in his reports this fact should not fix the defendant with liability in respect of the non ? reporting of the fractured sternum.

8. The degenerative changes in the plaintiff's back are not matters which should be considered separately from the right hip issue as both the degeneration of the back and degeneration of the left hip may be regarded as consequences of compensatory posture arising from the initial right hip injury.

9. While the evidence was inconclusive as to whether joint space of the left hip was narrower than the joined hip of the right hip, I consider that as these measurements arise many years after the plaintiff sustained the initial injury, that comparisons and possible apparent contradiction involving joint spaces are not helpful. I find that the evidence of Messrs. Norris and Strachan relating to the crucial nature of a clinical diagnosis based on symptoms is the best indicator of hip injury arising from accidental trauma rather than ageing process.

10. I consider that the evidence in the case does not leave me in a situation of having to decide between one authentic but conflicting school of thought as might be envisaged in the judgment of Finlay C.J. in Dunne v. The National Maternity Hospital & Anor. [1998] I.R. 91, rather I consider that, the weight of the evidence points me in one direction only to the facts. In relation to the balance of the injuries which were alleged by the plaintiff to have been overlooked by Mr. Regan, I consider that they are of such minor consequence that they would not have had the consequence of moving a settlement away from the threshold it reached in 1984 and thus should not be taken into consideration in this case.

11. The view of Messrs Norris & Strachan is consistent with at least one orthopaedic textbook of the early 1980s.

STATUTE OF LIMITATIONS

As the claim is sustained only in relation to economic loss and not personal

injuries, the six year period of limitation applies from date of accrual of action. As the right of return accrued (at the earliest) on the date of last medical report in 1982, the proceedings were commenced within the six year period thereafter and hence the claim as accepted by this Court is not statute barred.

DAMAGES

Having regard to the approach of Henchy J. in McGrath v. Kiely & Anor. [1965] I.R. 497 the plaintiff is entitled to the difference between the settlement he might have obtained had the defendant reported fully and properly on his right hip to his legal advisors and the settlement sum actually obtained by him. The settlement of over £70,000 in general damages was a significant and generous settlement for the injuries disclosed by the medical reports. However, it was given on the basis that the plaintiff received from his employers, (who were also the insurers of the defendant being sued in respect of the car crash), a letter of comfort in relation to the security of his employment notwithstanding his manifestly severe ankle injuries. There is no doubt that had the severity of the plaintiff's hip injuries being notified by the defendant in his reports prior to the settlement that either the amount of the settlement would have been increased or a more extensive and elaborate letter of comfort would have been given by the defendants or a combination of such altered reaction could have been obtained by way of overall settlement by the plaintiff. At this stage, it matters little whether the improved settlement in those circumstances would have included an extended letter of comfort, as such an extended letter of comfort would in itself have an economic value, however translated into monetary terms. The addition of the hip injuries would have been a significantly new element in the settlement, on the basis of no letter of comfort, I would consider, having regard that in 1984 the standard of Sinnott v. Quinnworth Ltd and Others [1984] 1 I.L.R.M. 1 indicating that the maximum compensation which a plaintiff might hope for in respect of general damages for the most catastrophic injuries would have been £150,000 and having regard to the fact that additional (even severe) injuries do not add to settlement values in strictly arithmetical terms the most likely increase of the value of the settlement from the point of view of general damages would have been £15,000. In addition, it would be likely that an attempt would have been made to negotiate either an actuarial figure for loss of earnings sometime in the future by reason of disability or loss of employment prospects, or to negotiate an overall loss of job prospects figure. In addition there may well have been some estimate of prospective costs of hip replacements.

Having regard to the actuarial evidence adduced on behalf of the plaintiff I consider that the appropriate manner of calculating the present value of damages attributable to these items of loss should be to apply whatever actuarial multiplier might foreseeably have been used in 1984 to deal with any feared loss arising from the deterioration of the hips. The plaintiff's actuary suggested in evidence that plaintiffs historical losses and the actuarial value of his present losses should be calculated and discounted back for the purpose of ascertaining the value of such losses at the date of the settlement in 1984. I reject this approach for two reasons - firstly, the damages would have been assessed in 1984 in the light of expectations in 1984 and in the light of mortality tables facing the plaintiff in 1984, and secondly the consistency tests put to the plaintiff's actuary in cross examination by counsel for the defendant were not met. I also reject the use of historical losses as a means for deciding the quantum in relation to these factors. The fact that the Oireachtas have provided for interest to be awarded on damages not arising from personal injuries is strong authority for this proposition that for all its theoretical weaknesses an award of interest under the Courts Act, 1981 is the most appropriate method of dealing with the matter, especially as the government has from time to time altered by statutory instrument the rate of interest to be awarded having regard to underlying monetary and economic conditions. The only guide of expectations at the time of negotiation in relation to loss of wages was a note made by the plaintiff in respect of his negotiations in relation to the loss of £65 per month in relation to the worst possible consequences of his ankle injury. Having regard to the evidence and the experience of the plaintiff, I consider that hip replacement and adverse consequences to the plaintiff's employment might not have been probable until the plaintiff was 48 to 52 and similarly expenditure on hip operations might not occur until that time. The plaintiff's actuary clarified in evidence when requested that the multiplier would be in the region of £200 per week lost. On this basis, a figure based on actuarial calculations for prospective loss of wages would have been in the region of £13,000. Alternatively, it would have been reasonable for such sum to be added on a non actuarial-mathematical basis on the basis of general loss of job prospects.

On the basis that there could reasonably be a probability of at least two hip operations the present value of same (at date of trial) would have been in the region of £9,200. This would probably be represented by a sum in the region of £3,000 in 1984 and it would be strongly discounted by reason of the fact that a hip operation would not be imminent. Hence, I consider the sum of £2,000 at most, to have been a likely contingency figure for hip operations in any settlement that would have incorporated an arthritic injury to the plaintiff's hips. Back operations and knee operations would not have been foreseeable in 1984 as the reporting literature from the defendant and Mr. Robinson do not allude to any secondary problems arising there, notwithstanding that the ankle injury would manifestly have given rise to some posture difficulties similar to those presented by a degenerating hip. I consider that the damages in this case may be summarised and totalled as follows in 1984 monetary damages:-

Loss to settlement in respect of general damages	£15,000
Probable actuarial loss – loss of job prospects	£13,000
Contingency sum in relation to hip operations in the future	£2,000
Total	£30,000

CONTRIBUTORY NEGLIGENCE

In relation to the pleas and submissions of the defendant in relation to contributory negligence on the part of the plaintiff, I consider that a plea of contributory negligence in this case is not sustainable by reason of the fact that the defendant did not bring the hip injury into sufficient focus to place an onus on the plaintiff or his advisors to receive clarification. Also the action was settled on the basis of a settlement at full value on the advice of two eminent and experienced senior counsel who were in 1984 best positioned to judge whether the case should be moved forward by setting it down for trial and advising on proofs for same rather than settle on the basis of full value when the opportunity arose.

APPLICABILITY OF COURTS INTEREST

Counsel for the defendant submitted that courts interest, if it is to be awarded, should not be awarded in respect of periods in which the plaintiff was guilty of delay. While I am aware that this has been an approach of the courts to the award of interest, I am satisfied that it is not an appropriate approach in this case for the following reasons:-

No authority was advanced for the practice.

There is no provision in the Act specifically directing that that is how the discretion is to be exercised in every case.

If the plaintiff had obtained judgment many years ago and had to rely on a judgment mortgage to recover same, the sum due under the judgment mortgage would carry interest on the same basis as Courts Act interest without being subject to any test for delay.

The fact that the Executive endeavours through changing the rate applicable to reflect economic and monetary circumstances and is empowered to do so by the Courts Act, 1981 indicates that it was the intention of the Oireachtas for Courts Act interest to be a neutral measure insofar as it was practicable to protect successful plaintiffs against the ravages of inflation and change in economic conditions.

To apply the jurisprudence of delay debated in this case in the manner so as to penalise a plaintiff in regard to interest where the plaintiff was more guilty of delay than the defendant would be to penalise the plaintiff using a system of jurisprudence which many of the authorities clearly say was not developed for the purpose of punishing plaintiffs.

The defendant had the use of some of the amount of the judgment for investment purposes or did not have a cost of interest.

Accordingly I am prepared to give judgment for the plaintiff against the defendant for the sum of €38,092.15 damages being the equivalent of £30,000 and interest pursuant to the Courts Act, 1981 from 16^th February, 1987, the date of issue of the High Court plenary summon, to date the judgment.

I will await submissions of counsel in relation to costs and their calculation of interest as ordered before finalising the order of the court.