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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McDonald -v- AZ Sint Elizabeth Hospital & ors [2014] IEHC 88 (27 February 2014)
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Cite as: [2014] IEHC 88
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Judgment Title: McDonald -v- AZ Sint Elizabeth Hospital & ors Neutral Citation: [2014] IEHC 88 High Court Record Number: 2009 19013 P Date of Delivery: 27/02/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2014] IEHC 88 THE HIGH COURT [2009 No. 19013 P] BETWEEN/ AIDAN McDONALD PLAINTIFF AND
AZ SINT ELIZABETH HOSPITAL, DR. JOOST VAN DER SYPT AND NORTH WEST WALES NATIONAL HOSPITAL TRUST DEFENDANTS JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of February, 2014 1. By notice of motion dated 11th February, 2010, the first and second defendants have invoked the jurisdiction of this Court pursuant to O. 12, r. 26 of the Rules of the Superior Court 1986, as they now seek an order setting the aside the service upon them of these proceedings. These defendants are both Belgian domicilaries and they contend that this Court lacks jurisdiction in respect of the plaintiff’s claim having regard to the provisions of Council Regulation No. 44/2001 (EC)(“the Brussels Regulation”). 2. Before explaining the nature of this claim and the legal issues which now arise, it should first be stated that the claim as against the third defendant has now been compromised and this does not require to be further considered. 3. The claim which I am now require to consider is a claim in negligence for personal injuries as against the first and second defendant and a claim for damages for breach of contract as against the first defendant only. The proceedings themselves arise from a gastric bypass procedure performed on the plaintiff, Mr. McDonald, at the AZ Sint Elisabeth Hospital, Zottegem in Eastern Flanders on 6th March, 2007. 4. Before considering these facts, it is important to stress that in the conext of this jurisdictional motion I am required to examine these background facts simply for the purposes of determining jurisdiction only. In other words, so far as the plaintiff’s claims of medical negligence and breach of contract are concerned, I am treating these at face value and I am expressing no view as to the underlying merits of these claims. It is also necessary to record that as the first and second defendants have contested the jurisdiction of the Court, they have not yet had the opportunity of filing any defence to these claims. 5. In the autumn of 2006 the plaintiff was a third level student studying Health and Social Science at the University of Bangor in Wales. He concluded, however, that the course was unsuitable for his future career plans, since it focussed on careers in the UK, whereas he was interested in obtaining work in Ireland. Mr. McDonald abandoned the course at the end of the first semester and returned back to his family home in Kildare. Accordingly, whatever may have been the position while he was a student in Wales, as of the date of the contract in March 2007 the plaintiff was domiciled in Ireland for the purposes of Article 2 of the Brussels Regulation. 6. In February and March, 2007 Mr. McDonald sought treatment for obesity. Having consulted a UK-based English language website, he learned of the facilities offered by the defendant hospital. It is important to stress that the web-based promotional material is clearly directed at both the UK and Ireland. The literature was written in English and not in Flemish or French. Part of the promotional brochure stated:
8. The version of this web-based promotion literature which was exhibited in evidence dates from about 2010 or 2011 (as it refers, inter alia, to prospective consultation dates in Dublin and Cork in 2011), but neither party was in a position to produce the precise version of the web-site which was operational in 2007. I think I can nevertheless assume that the website which was operational then must have been in broadly similar terms. 9. There is, however, no dispute but Mr. McDonald telephoned Dr. Van Der Sypt from Ireland on two occasions to discuss the proposed procedure, the costs involved and the making of the appropriate appointments. On 5th March, 2007, Mr. McDonald flew from Dublin to Brussels Charleroi Airport and from there made his way to the hospital. He paid the appropriate invoice for the operation. His Kildare address was the address used in all correspondence between the parties and this was also the address given on the invoice. Mr. McDonald returned to Ireland after the operation. 10. It has to be admitted that the particulars given in the personal injuries summons disclose a slightly different emphasis, because it is pleaded that “when the plaintiff returned to his home in Wales after the operation his condition continued to deteriorate to the extent that he was almost totally incapacitated.” These details may, however, have been supplied at a time when the private international law aspect of the claim may not have been in direct focus. It seems clear, however, from the affidavits subsequently filed in opposition to the first and second defendant’s motion that Mr. McDonald returned to Ireland and thereafter travelled to Wales for the purpose of tidying up his affairs there following his earlier decision not to pursue the course. His condition further deteriorated while in Wales. This resulted in an admission to hospital, which in turn gave rise to the claim against the third defendant hospital with which I am not presently concerned. 11. In that personal injury summons Mr. McDonald contended that during the course of the operation the second defendant had conducted an internal spillage of fluid resulting in him suffering from a serious infection in the bowels, an abscess below the diaphragm, pleural pneumonia, septicaemia and general chronic ill health. Mr. McDonald further contends that he was discharged too early by the first defendant and that they dismissed his claims that he was seriously unwell. It is again important to recall that neither Dr. Van Der Sypt or the Hospital have had an opportunity to respond to these contentions. The Brussels Regulation and the plaintiff’s claims 13. There is no suggestion that the special jurisdiction provisions of Article 5 or Article 6 come into play here. Specifically, it is accepted that Belgium was the place of the obligation in question for the purposes of special jurisdiction in contract for the purposes of Article 5(1). Nor has it been suggested that the alleged “harmful event” - which would ground a jurisdiction in tort - was other than Belgium for the purposes of Article 5(3). 14. It follows, therefore, that this Court has no jurisdiction to entertain the plaintiff’s claims against the first and second defendants unless the case can come within the scope of Article 15(1)(c), which provides:
(b) it is a contract for a loan repayable in instalments, or for any other form of credit, made to finance the sale of goods; or (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.”
2. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.” Whether the plaintiff is a “consumer” within the meaning of Article 15(1)(c)?
[15] As far as the concept of ‘consumer’ is concerned, the first paragraph of Article 13 of the Convention defines a ‘consumer’ as a person acting ‘for a purpose which can be regarded as being outside his trade or profession’. According to settled case-law, it follows from the wording and the function of that provision that it affects only a private final consumer, not engaged in trade or professional activities (Shearson Lehman Hutton, paragraphs 20 and 22)…. [17] Consequently, only contracts concluded for the purpose of satisfying an individual’s own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically…” Whether the plaintiff entered a contract with persons providing professional services with him 20. As Dr. Van Der Sypt is domiciled in Belgium for the purposes of Article 2 and is there is no suggestion that the “harmful event” for the purposes of Article 5(3) giving rise to the action in negligence occurred in Ireland, this Court accordingly lacks jurisdiction to entertain any claim as against Dr. Van Der Sypt. It could only have jurisdiction if there was a consumer contract for the purposes of Article 15, but as there was no contract between these parties, the issue does not arise. It follows, therefore, that the proceedings as against the second defendant, Dr. Van Der Sypt, must stand dismissed by reason of the lack of subject matter jurisdiction in respect of this defendant. 21. The position with regard to the first defendant, the Hospital, is clearly different. Here there was clearly a contract between the parties in the ordinary sense of the term, since the Hospital provided a service for which the plaintiff paid. It is, of course, true that as Kearns P. observed in Harkin v. Towpik [2013] IEHC 351, [2014] 1 ILRM 51 (a case presenting almost identical issues to the present one), claims of this kind are normally treated by our legal system in reality as tortuous claims for medical negligence. This cannot, however, obscure the fact that there was indeed a contract between the parties. 22. In Finlay v. Murtagh [1979] I.R. 249 the Supreme Court held that a professional person generally owes a concurrent duty in both contract and tort to his client. In that case the plaintiff claimed that his solicitor had negligently failed to commence proceedings in a timely fashion in respect of an industrial accident he occasioned at work so that they had become statute-barred. The plaintiff maintained that he was entitled to sue in negligence as well as contract and for that purpose he was entitled to claim (as the law then stood) a jury trial. The Supreme Court agreed with this general proposition, albeit with some subtle qualifications. Henchy J. applied the following test which had been enunciated by Greer L.J. in Jarvis v. Moy, Davies, Smith, Vandervell & Co [1936] 1 K.B. 399, 455:
26. It may be noted that in the particulars of breach of contract on the part of the Hospital supplied by the plaintiff in the personal injuries summons it is alleged simply that by virtue of s. 39 of the Sale of Goods and Supply of Services Act 1980:
28. Additionally, the concept of “contract” for the purposes of Article 15 must naturally be interpreted autonomously by reference to the European sense of that term (cf. by analogy the comments of the Court of Justice with regard to the meaning of Article 13 of the Brussels Convention in Benincasa and Article 15 of the Brussels Regulation in Case C-144/09 Hotel Alpenhof GmbH [2010] ECR I-12527) and it cannot be diluted or qualified by reference to purely national practices or understandings. One might add that the very object of Article 15(1)(c) is also relevant in this context, since it is designed to ensure that consumers who are induced to travel to avail of services elsewhere in the European Union by advertising directed at them in their country of origin are not deprived of a key aspect of consumer protection, namely, the right to sue for damages for breach of contract in the courts where they are domiciled. If it were otherwise, it might mean that such consumers would be dissuaded by the complexities of foreign litigation from pursuing legitimate claims against service providers domiciled in foreign jurisdictions. This is so irrespective of whether such claims would normally be regarded as in essence tortuous in nature by particular legal systems (such as is the case in Ireland), provided, of course, that there is (as here) an underlying contract between the parties. 29. I should add in passing that I am here assuming that Irish law is, in fact, the proper law of the contract, but this matter may yet have to be determined, having regard to the provisions of Article 4 and (perhaps especially) Article 5(2) of the Rome Convention on Contractual Obligations 1980 (which Convention is given the force of law in the State by s. 2(1) of the Contractual Obligations (Applicable Law) Act 1991).(The provisions of the replacement Regulation, Regulation 593/2008 (“Rome II”) apply only to contracts made after 17th December, 2009, whereas the contract in the present case dates from March 2007). For present purposes, it is unnecessary to express any further views on the choice of law issues which were not, in any event, argued before me.Were the Hospital’s services “directed” at this jurisdiction for the purposes of Article 15(1)(c)? 30. At the hearing much debate centred on whether the present case was governed by the decision of Kearns P. in Harkin v. Towpik [2013] IEHC 351, [2014] 1 ILRM 51. In that case an Irish-based plaintiff had travelled to Poland for the purposes of certain cosmetic surgery. Having examined the judgment of the Court of Justice in Case C-144/09 Hotel Alpenhof GmbH v. Oliver Heller [2010] ECR I-12527, Kearns P. concluded on the facts of that case that the services in that case had not been “directed” to this jurisdiction. 31. The decision in Hotel Alpenhof concerned the non-payment of a hotel bill for a stay booked by a German national in Austria on the internet, in which the Austrian national court asked the Court of Justice to determine whether the fact that a website of the party with whom a consumer concluded a contract can be consulted on the internet was sufficient to warrant a finding that an activity was being “directed” to the Member State in question within the meaning of Article 15(1)(c). 32. The Court of Justice noted that the notion in Article 15(1)(c) of activity “directed to” the Member State of the consumer’s domicile was not defined in the Regulation. It accordingly held that the term “must be interpreted independently by reference to principally to the system and objectives of the Regulation, in order to ensure it is fully effective”. The Court of Justice further stated that whilst there is no doubt that the aim of Article15(1)(c) and Article 16 of the Regulation is to protect consumers:
[76] It must therefore be determined, in the case of a contract between a trader and a given consumer, whether, before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers domiciled in other Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with those consumers.”
[81] Clear expressions of such an intention on the part of the trader include mention that it is offering its services or its goods in one or more Member State designated by name. The same is true of the disbursement of expenditure on an internet referencing service to the operator of a search engine in order to facilitate access to the trader’s site by consumers domiciled in various Member States, which likewise demonstrates the existence of such an intention. [82] However a finding that an activity is ‘directed to’ other Member States does not depend solely on the existence of such patent evidence. In this connection, it should be noted that, by its legislative resolution on the proposal for a regulation that is referred to in paragraph 43 of the present judgment (OJ 2001 C 146, p.101), the European Parliament rejected wording stating that the trader had to have ‘purposefully directed his activity in a substantial way’ to other Member States or to several countries, including the Member State of the consumer’s domicile. Such wording would have resulted in a weakening of consumer protection by requiring proof of an intention on the part of the trader to develop activity of a certain scale with those other Member States.”
[94] On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address or other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.”
Furthermore, the plaintiff only met the first named defendant for the first time in Poland and was only examined for the first time in Poland, where she also underwent pre-operative tests for the first time. Significantly, it was in Poland that the breast reduction procedure was performed. Although she may have transferred monies constituting a deposit from her bank account in Ireland, this was only a nominal sum in relation to the total cost of the procedure, and the remaining cost of the surgery was paid in Poland. In addition, the plaintiff had signed a consent form while in Poland. All of these matters suggest that the defendants’ activities were not directed to consumers within this jurisdiction.” 40. In this respect, therefore, the plaintiff in the present case comes within the Hotel Alpenhof test in that the Hospital clearly envisaged doing business with patients domiciled in Ireland. This was in contrast to the position in Harkin where the relevant website was exclusively directed at patients domiciled in the United Kingdom. Moreover, as Kearns P. noted in his judgment, the plaintiff in that case had simply happened to come across the website following an internet search. Conclusions 42. In this regard, it suffices to say that the plaintiff is a “consumer” for this purpose, that the claim in question is a contractual claim (even if it would more naturally be characterised by Irish law as principally a claim in tort) and the Hospital “directed” its services at Ireland and Irish consumers in the manner envisaged by the Court of Justice in Hotel Alpenhof. 43. It follows, therefore, that this Court has jurisdiction only in respect of the claim in contract as against the Hospital by virtue of Article 15(1)(c) of the Brussels Regulation, but the claims in tort brought against Dr. Van Der Sypt must stand dismissed for want of jurisdiction.
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