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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hewitt -v- Health Service Executive [2014] IEHC 300 (04 June 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H300.html
Cite as: [2014] IEHC 300, [2014] 2 ILRM 666
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Judgment Title: Hewitt -v- Health Service Executive Neutral Citation: [2014] IEHC 300 High Court Record Number: 2012 755 P Date of Delivery: 04/06/2014 Court: High Court Composition of Court: Judgment by: Baker J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 300 THE HIGH COURT [2012 No. 755 P] BETWEEN JOSEPH HEWITT AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF DOLORES HEWITT (DECEASED) PLAINTIFF AND
THE HEALTH SERVICE EXECUTIVE DEFENDANT JUDGMENT of Ms. Justice Baker delivered on the 4th day of June, 2014 1. The plaintiff is the husband and personal representative in the estate of Dolores Hewitt, deceased, who died on 23rd June, 2010. By personal injuries summons dated 25th January, 2012, he issued proceedings pursuant to s. 7 of the Civil Liability Act 1961, and proceedings on behalf of himself and the other statutory dependants of the deceased for wrongful death pursuant to s. 48 of the Act of 1961. 2. The defendant has, by motion, sought that this Court would determine as a preliminary issue in these proceedings whether the plaintiff’s action is barred by the Statute of Limitations Act 1957 to 2000 (as amended). Certain facts are uncontroverted and may be briefly summarised. 3. The deceased had a history of breast cancer and was treated in 2001 at Our Lady's Hospital Navan following which she made a full recovery. For monitoring purposes, she was required to attend at the hospital for review. She attended for radiological review in February 2007, when an ultrasound disclosed the existence of two lesions in her liver. Due to inadvertence on the part of the hospital no action was taken on foot of this report until a chance meeting with her surgeon five months later led to further scans which revealed further lesions in her liver. The deceased was treated for her secondary cancer, but sadly, eventually died from the cancer on 23rd June 2010. 4. It has been accepted by counsel for the plaintiff and the defendant that the deceased had sufficient knowledge of the wrongful act of the defendant for the purpose of s. 6(1) of the Statute of Limitations (Amendment) Act 1991 ("the 1991 Act") in July 2007, and accordingly the two year statutory limitation period expired in July 2009. No action for personal injuries was commenced by the deceased in her own personal capacity prior to her death. The defendant submits that these actions commenced by the plaintiff as personal representative of the deceased were statute barred at the time of the institution of the proceedings. 5. Different legal considerations apply to the question of the running of the Statute of Limitations for each action commenced by the plaintiff, and I will deal with each in turn. The action under s. 7 of the Civil Liability Act 1961
(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness. (3) Where- (a) a cause of action survives by virtue of subsection (1) of this section for the benefit of the estate of a deceased person, and (b) the death of such person has been caused by the circumstances which gave rise to such cause of action, the damages recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (4) The rights conferred by this section for the benefit of the estate of a deceased person are in addition to the rights conferred on the dependants of deceased persons by Part III of the Act of 1936 and Part IV of this Act. 8. What s. 7 does is to preserve causes of action: the personal representative may continue an action already commenced by a deceased, or commence proceedings which the deceased could have commenced. The personal representative brings the action on behalf of the estate of the deceased and any damages will fall into the estate to be distributed under the rules of intestate or testate succession, as the case may be. The personal representative's claim is not as broad as that which might have been maintained by the deceased during his or her lifetime and the action may not be continued in respect of personal injuries and the other classes excluded by s. 7(2), but is an action on behalf of the estate and preserves the rights of action of a deceased not concluded or litigated prior to death. 9. It is argued by the defendant that the cause of action which was vested in the deceased at the time of her death was already statute-barred at the date of death. The relevant time period for the institution of those proceedings was two years from the accrual of the cause of action or her date of knowledge, if later. This flows from the combined provisions of s. 3 of the Statute of Limitations (Amendment) Act 1991 (as amended by s. 7 of the Civil Liability and Courts Act 2004). The "date of knowledge of the plaintiff', as defined by s. 2 of the Act of 1991, was July 2007. This was the date when she became aware of the error which had occurred and of the fact that her condition had deteriorated between the time of the first scan in February 2007, and the date she became aware that the results of that scan showed an abnormality. By the time the second set of investigations was carried out in July 2007, the secondary cancerous lesions had become widespread in the liver of the deceased. It has been accepted by counsel for the plaintiff that the deceased did have knowledge of her injuries, that the injuries were significant, and that the spread in the secondary cancerous lesions was attributable to the actions of the hospital in failing to notify her of the lesions found in February 2007, and in the failure to treat her between February and July 2007. 10. The plaintiff did have the requisite knowledge in July 2007, and from the date of that knowledge, time began to run against her for the purposes of commencing an action for damages, and the statutory time limit expired in July 2009. She did not commence proceedings within the time limited by statute and accordingly there existed at the date of her death no action which could be continued by the personal representative, nor was there vested in her any cause of action which could have been commenced by her personal representative on her behalf and on behalf of her estate. The plaintiffs claim under s. 7 of the Act of 1961 must fail, the action being statute barred. Section 48 of the Civil Liability Act 1961
(2) Only one action for damages may be brought against the same person in respect of the death. (3) The action may be brought by the personal representative of the deceased or, if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants. (4) The action, by whomsoever brought, shall be for the benefit of all the dependants. (5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered. 13. The dependants may claim in respect of solatium and for lost financial dependency if they can show the loss of a financial benefit which might reasonably have been expected, including household or other direct financial contributions, mortgage contribution, etc. and what might be called money's-worth services such as housekeeping and childminding. Jurisprudence has evolved in assessing the quantum of such lost financial dependency. In Quinn v. Cashin [2005] IEHC 214, O'Donovan J. favoured a discount to account for a possibility that a plaintiff might marry in the future and accepted that the dependants could recover damages for services that the deceased would have provided "as a housekeeper, cleaner and general factotum around the house". The dependants are also entitled to claim vouched funeral-related expenses. Hardiman J. obiter in Grant v. Roche Products (Ireland) Ltd. & Ors. [2008] 4 IR 679, expressed the possibility that the dependant could recover the costs incurred in investigating the cause of a fatal injury, in that case, the costs of expensive research in preparation for an inquest into the deceased's death, which allegedly resulted from a condition caused by a prescription drug. 14. What are clear are the constituent elements of the statutory claim. The claim is brought by the dependants of a deceased person. It is limited to a measured amount for mental distress, funeral or other similar-type expenses, and damages calculated to compensate the dependants for their loss of financial dependency. In no sense is the quantum of damages true compensation to the deceased, nor does the measure of damages reflect the actual losses incurred by a deceased arising from the wrongful act. It is loss to the dependants that is actionable, not loss to the deceased or his or her estate. This distinction is so, even when one takes into account that by virtue of s. 7(2) of the Act of 1961, the cause of action which survives the death of a deceased does not include any claim for damages for pain or suffering or personal injury. A claim under s. 7 is a claim which may be maintained in respect of loss of earnings or medical expenses already incurred by the deceased at the date of death. But such a claim is not capable of being maintained under s. 48. An action by the dependants is a different cause of action. The loss of pecuniary benefits is the loss of those benefits which the dependants can show were their losses, and not the loss of the deceased. 15. The personal representative has a right to commence such an action. If an action is not commenced by the personal representative within six months of the death of the deceased, the action may be brought by all or any of the dependants. This is because the action is not one on behalf of the estate, but rather the action of the dependants for redress following the death of a loved one, and it is set out in s. 48(4); the action by whomsoever it is brought enures for the benefit of all the dependants, and the damages recoverable do not fall to be distributed in the estate, but as directed by the court. 16. The statutory fatal injuries claim is wholly statutory in origin and is not found in the common law. To borrow the words of Lord Blackburn dealing with the broadly similar s. 1 of the Fatal Accidents Act 1846 in the Vera Cruz 1884 10 App Cas 59 at 70-71 it is "new in its species, new in its quality, new in its principle, in every way new .... " 17. Extraordinarily, and notwithstanding that legislation providing for a form of fatal injury action by statutory dependants has been in place since the middle of the nineteenth century, there is no decided case in the courts of England and Wales, or in Ireland, as to whether the running of a statutory time limit against a deceased would also bar the fatal injuries claim by the dependants. 18. McMahon and Binchy at para. 42.13 of their text Law of Torts, 4th Ed., suggest that the question could be decided either way:
20. The Act of 1961, as amended, itself provides an express and clear statutory limitation period. Section 6 of the Statute of Limitations (Amendment) Act 1991, provides that an action under s. 48 of the Act of 1961 shall not be brought after the expiration of three years from:
(b) the date of knowledge of the person for whose benefit the action is brought, whichever is the later. 21. The express statutory limitation provisions link the running of time to the date of death or knowledge of the dependants, not of the deceased. It says nothing to link the running of time to any operative limitation that would have run against the deceased. It is argued by counsel for the defendant that this link is made in s. 48(1) itself and I turn now to examine this in detail. The meaning of the requirements in s. 48(1)
(b) that the action is one which the deceased would have been entitled to maintain during his or her lifetime and (c) The deceased could have recovered damages for the wrongful act. 23. The action must be one that the party injured, but for his death, could have "maintained". That phrase does no more than require that the cause of action must be one which gave rise to liability on the part of the defendant to the deceased i.e. the wrongful act would have been actionable and be a cause of action known to law. 24. Further, the test is stated in the conjunctive and the Act requires that the deceased could have recovered damages in the action had it been brought in his or her lifetime. Thus the statutory requirement is that the cause of action must not only be one justiciable by the deceased, but be in respect of a class of action for which damages are recoverable at law, that the form of redress for the wrong is damages, and that the deceased could have established liability and recovered damages. The conjunction is stated to require not merely that the cause of action be one recognised by law but that the deceased would have on the facts of an individual case recovered an award of damages. It is not sufficient then to show for example that the death was caused by a negligent act, one must show that negligence caused a loss capable of being measured in damages. 25. Counsel for the parties have furnished me with cases which, they submit, are authoritative although it is conceded that there is no Irish decision which is directly on point. UK cases
27. In Nunan v. Southern Railway Company 1924, 1 K.B. 223, Scrutton L.J. stated obiter the following at pp. 227 - 228:
29. These decisions, while persuasive, are not binding on me and the decisions of the old Court of Appeal were given in a context where there was no statutory time limit expressly provided for the bringing of the fatal injuries claim. Such an express statutory provision exists in Ireland. Irish Authorities 31. Lavan J. considered the meaning and purpose of s. 7 of the Act of 1961, and described it as having abolished "the general common law rule that causes of action for tort vested in a person before his death do not survive his death." Lavan J. is correct in this analysis and held that because the deceased had compromised his action for negligence against his employers prior to his death, that no action was vested in him at the date of his death that could be continued under s. 7. Lavan J. then considered the fatal injuries claim and held that such a claim could only arise if it was "vested in the deceased before his death which he had not compromised or sued to judgment." 32. Lavan J. did not consider the question which has been raised before me in this case, namely, whether, if a deceased had not compromised or sued to judgment the wrongdoer prior to death, his dependants could sue under s. 48 of the Act of 1961. His focus was on the fact that the cause of action had already been compromised which meant that the deceased was no longer entitled to bring the action. Lavan J's reason for this conclusion is critical. He said that to now allow the dependants to sue in respect of a wrongful act for which compensation had already been received would "subject a defendant to two actions arising from one cause of action." His reasoning arose from considerations of res judicata and the fundamental principle that a defendant may not be sued twice in respect of one wrongful act. 33. Lavan J.'s decision was made by him as a High Court judge hearing a Circuit appeal and his decision is not binding on me. Further, the point was argued before him on the question, relevant only to a claim under s. 7, whether the right of action was "vested in the deceased before his death". There is no requirement in s. 48 that the cause of action be vested in the deceased and the word "vested" is not used in that section at all. 34. In Farrell v. Coffey [2009] IEHC 537, Dunne J. heard a motion on behalf of a plaintiff to amend a statement of claim in proceedings commenced by a deceased prior to her death. The action was for medical negligence in respect of an alleged misdiagnosis of a cancerous condition. At the time of the proceedings, it was clear that she had a terminal illness. These proceedings were re-constituted in the name of her widower and personal representative and continued under s. 7 of the Act of 1961 but he brought a motion seeking liberty to amend the statement of claim to include a claim under s. 48 and as Dunne J described it, "transform the original personal injuries claim into a fatal injuries claim on his own behalf and on behalf of the statutory dependants". Dunne J. refused to allow the amendment. She held that the plaintiff was attempting, by means of the proposed amendment, to "set up an entirely new case, i.e. a fatal injuries case, using the vehicle of the personal injuries case". Such a change would have been a change "of significance in the nature of the proceedings" and could not be permitted. 35. Dunne J. analysed the nature of a fatal injuries claim and indicated that it was "different to" a personal injuries claim, even if the claim arises out of the same facts. This is so, she said, not merely because the nature of the claim is different, but also because the damages that flow from the facts are different. 36. While the precise dates are not clear from the judgment, it is clear that Mrs. Farrell had died on 24th October, 2005. Expressing the view that the fatal injuries proceedings would have been statute-barred at the issue of the notice of motion, the 31st March, 2008, Dunne J. says that no explanation had been given as to why the plaintiff sought to reconstitute the proceedings instead of issuing new fatal injuries proceedings "within an appropriate time". She said that had this happened, those proceedings would not have been statute-barred. The plaintiff’s cause of action was one that arose in May 2001, when the incorrect diagnosis was made, and the relevant statutory time limit at that time was three years from that date. The deceased herself was statute barred at the date of her death but Dunne J. took the view, albeit obiter, that the fatal injury claim would not have been statute-barred, and her obiter view was that time began to run at the date of death. Analysis 38. In that regard, the statement in the decision of the Supreme Court of South Dakota in Rowe v. Richards 35 S.D. 201, was referred to by counsel for both parties:
40. I prefer the interpretation that the provisions of s. 48(1) define the cause of action, and do not provide a limitation period linked to that which barred the deceased. Furthermore the decisions of the old Court of Appeal and of Lavan J. in Mahon v Burke and the Midwestern Health Board concern the risk of double recovery and no such concern arises in this case. The Constitutional Dimension 42. In Grant v. Roche Products (Ireland) Ltd. [2008] IESC 35, a claim was brought by the statutory dependants of a deceased whom, it is alleged, died by his own hand as a consequence of taking a prescription drug, Roaccutane. The defendants had offered to settle the case for its full worth which the plaintiff rejected. The defendants brought a motion to strike out the proceedings as being pointless or an abuse of court process. Hardiman J. pointed out that Part IV of the 1961 Act must be construed in a manner compatible with the Constitution and said that the "plangent words" of Article 40.3 did require the right to life of each individual citizen, including the deceased whose dependants had brought the action, to be vindicated. He said that the obligation to vindicate the right of the deceased could include the right on the part of his dependants to seek that the court would determine the liability of the defendant for that death, and to pronounce such determination. He quoted with approval the dictum of Henchy J. in Hanrahan v. Merck Sharpe & Dohme (Ireland) Ltd. [1988] I.L.R.M .629, and pointed to the role of the law of torts in implementing the State's duty under Article 40.3 and the Personal Rights Articles of the Constitution. 43. The fatal injuries claim created by the s. 48 of the Act of 1961, and recognised in s. 7(4) as being a separate right of the dependants, must be broadly interpreted in the light of the constitutional imperative so as not to exclude the persons entitled to bring a claim under the section by events which occur before the cause of action could have accrued. Further constitutional consideration: fairness to a defendant Conclusion |