THE HIGH COURT
[2025] IEHC 327
[Record No. 2023/3328P]
BETWEEN
FINBARR TOLAN
PLAINTIFF
AND
THE BRINDLEY MANOR FEDERATION OF NURSING HOMES LTD TRADING UNDER THE STYLE AND TITLE OF BROOKVALE MANOR NURSING HOME (OTHERWISE KNOWN AS BRINDLEY HEALTHCARE)
DEFENDANT
Judgment of Mr Justice Barr delivered ex-tempore on 4 June 2025.
Introduction.
1. This is an application by the defendant for an order striking out the plaintiff's action against it on the following grounds: firstly, on the grounds that the plaintiff does not have locus standi to maintain the proceedings; secondly on the grounds that as this is a clinical negligence case, the plaintiff has failed to establish that he has a report which would give rise to a stateable cause of action in negligence against the defendant; and thirdly, because the plaintiff has proceeded by way of a plenary summons and statement of claim, rather than by issuance of a personal injury summons as is required under the provisions of the Civil Liability and Courts Act 2004, his proceedings should be dismissed.
2. The background to the present application can be summarised in the following way: the plaintiff's uncle, Mr Patrick Concannon, was 76 years of age in June 2021, when he underwent surgery to his lungs for treatment for cancer. That surgery was carried out on 24 June 2021. The plaintiff's uncle was discharged from hospital into the care of the defendant's nursing home on 6 July 2021.
3. On 7 July 2021, the plaintiff states that upon visiting his uncle, he saw that his uncle was "looking terribly bad in colour". His uncle complained of feeling terribly unwell; he was pointing to his chest and complaining of pain and shortness of breath. The plaintiff noticed that his uncle was breathing heavily and he was also complaining of pain in his stomach area. The plaintiff states that he reported the deterioration in his uncle's condition to the nurse on duty in the defendant's nursing home. She agreed that plaintiff's uncle was not looking well. She stated that she would summon a GP to come to the nursing home to examine him.
4. The plaintiff states that he was so concerned about his uncle's condition, that he contacted the GP practice where his uncle attended. He asked them if the GP would come and examine his uncle. Later that same day, he dropped in a letter to the GP practice outlining his concerns about his uncle's health and requesting that the GP would go to the nursing home and examine him.
5. The plaintiff states that later that evening, he was contacted by the nurse in the defendant's nursing home, who told him that his uncle was looking much better. She stated that she had phoned the GP and had agreed with him that an examination was not required.
6. The plaintiff states that later that evening he was again contacted by phone by the nurse, who informed him that his uncle had collapsed. Some short time later, while the plaintiff was en route to the nursing home, he received a further telephone call from the nurse, who informed him that his uncle had died. That occurred at 19.10 hours.
7. On 8 July 2021, a post-mortem examination was carried out on the deceased. This recorded that the cause of death was due to pulmonary thromboembolism and ischemic heart disease.
8. The plaintiff commenced proceedings against the defendant by issuance of a plenary summons on 6 July 2023. On 15 December 2023, the plaintiff served a statement of claim. In this, he asserted that the defendant had breached its duty of care and to the deceased by failing to take into account the sudden deterioration in his condition after his discharge from hospital following major surgery. It was alleged that the defendant had acted negligently in failing to have the deceased examined by a doctor or transferred by ambulance to a hospital for investigation once his condition had deteriorated so rapidly. It was alleged that had the defendant not acted negligently in the way alleged, the deceased would not have died. In the statement of claim the plaintiff claimed damages for breach of contract, negligence, and in respect of the death of his uncle pursuant to the provisions of the Civil Liability Act 1961 (as amended).
9. An appearance was entered on behalf of the defendant on 3 August 2023. On 1 July 2024, the present notice of motion was issued by the defendant.
The Present Application.
10. When this matter came on for hearing before the court on 3 June 2025, there was no appearance by or on behalf of the plaintiff. The plaintiff had sent an email to the solicitor acting for the defendant stating that there had been confusion as to whether another matter involving him had been put in for hearing before the court on 3 June 2025. When it had been ascertained that that matter was not before the court, he indicated that he did not propose to attend the hearing to deal with the present application. The court ruled that that was not a sufficient reason for his failing to attend court. It ruled that it would proceed to hear the application in the absence of the plaintiff.
11. On behalf of the defendant, Mr White BL, submitted that there were three grounds on which the defendant was seeking to have the present proceedings against it dismissed. The first ground was that the plaintiff lacked locus standi to bring proceedings in respect of a fatal injury pursuant to Part IV of the Civil Liability Act 1961 (as amended). It was submitted that s.48 of the Act provides that where the death of a person is caused by the wrongful act of another, such as would have entitled the party injured, but for his death, to maintain an action to recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased. The section provides that a fatal injury claim may only be brought by "the personal representative of the deceased, or... by all or any of the dependants". It was submitted that while the plaintiff was named as the executor in the deceased's will, he had not taken out any Grant of Probate of the Will.
12. It was submitted by counsel that the decision in Casey v Casey [2023] IEHC 643, established that where a person had been named as executor in a will they had a right to institute proceedings in advance of a grant of probate being made in respect of the will, but the proceedings could be stayed pending the obtaining of such a grant by the plaintiff prior to the trial of the action: see paras 60 - 63.
13. It was submitted that while the court could stay the proceedings to enable the plaintiff to extract the grant of probate, it was more appropriate having regard to the other grounds on which the relief was sought, that the proceedings against the defendant should be dismissed due to the fact that the plaintiff had failed to obtain a grant of probate, notwithstanding that he had been requested by the defendant's solicitor to obtain such a grant as far back as 2023.
14. The second ground on which the defendant submitted that it was entitled to a dismissal of the proceedings against it was because the plaintiff was not in a position to establish that any alleged negligence on the part of the defendant had caused the death of the deceased.
15. In this regard, the defendant referred to a medical report which had been furnished to it by the plaintiff from a Dr Soo which stated that if the deceased's condition had deteriorated in the manner alleged by the plaintiff, the authorities in the nursing home ought to have summoned a doctor and/or summoned an ambulance to bring the deceased back to the hospital. In particular, the defendant relied upon a portion of the medical report in which it was stated that even if a medical examination had been carried out upon the deterioration of the deceased's condition, "it may not have changed the clinical outcome".
16. It was submitted that in order to be successful in a wrongful death action pursuant to the Civil Liability Act 1961, it was incumbent upon the plaintiff to establish that but for the negligence of the defendant, the death of the deceased would not have occurred. In this regard counsel referred to the decision of the Supreme Court in Quinn v Mid Western Health Board [2005] 4 IR 1, where Kearns J (as he then was) delivering the judgment of the court had reiterated that in Irish law the 'but for' test was the appropriate test to apply in relation to causation of damage. In particular, counsel relied on the following portion of the judgment at paragraph 50:
"From the review of the cases undertaken herein, I am driven to conclude that counsel for the defendants' submissions in relation to the onus of proof and causation generally are correct and that the "but for" approach to causation must be followed by this court. Any approach which had the effect of reversing the onus of proof, or transferring the onus of proof to the defendant, would be one of such importance, even in the few exceptional cases where it might be appropriate, that it would require a full court - or perhaps even legislation - before a change of such magnitude to existing law could take place. Nor do special circumstances arise or exist in this case to bring it within the more relaxed requirements for establishing causation which were found to exist in McGhee v. National Coal Board [1973] 1W.L.R. 1 and Fairchild v. Glenhaven Funeral Services Ltd [2003] 1 AC 32."
17. It was submitted on behalf of the defendant that in this case, taking the plaintiff's medical evidence at its highest, there was no evidence that but for the alleged negligence on the part of the defendant, its servants or agents, the death of the deceased would not have ensued. It was submitted that in these circumstances the plaintiff was not able to succeed in his wrongful death action pursuant to Part IV of the Civil Liability Act 1961 (as amended). It was submitted that the plaintiff's action should be dismissed as it was bound to fail as he lacked the requisite evidence to establish causation.
18. The third ground on which the defendant submitted that it was entitled to an order dismissing the proceedings against it, was because the plaintiff had proceeded by the wrong form of proceedings. His action had been commenced by plenary summons, which had been followed by service of a statement of claim. It was submitted that this was the incorrect form of proceedings to have adopted, because a fatal injury claim was deemed to be a personal injury action within the meaning of the Civil Liability and Courts Act 2004, which requires that such proceedings should be commenced by issuance of a personal injury summons.
19. It was submitted that this was not a mere technical objection, because under the 2004 Act, a personal injury summons had to be verified by means of an affidavit sworn by the plaintiff who had issued the proceedings. It was submitted that in the present case, by instituting the proceedings by means of a plenary summons and statement of claim, not only had the plaintiff adopted the incorrect form of proceedings, but by doing so, he had avoided the obligation to provide an affidavit of verification.
20. Counsel submitted that s. 10(3) of the 2004 Act provided that the court may dismiss the proceedings, or could direct that the action should not proceed any further until the plaintiff complied with such directions as the court may specify. It was submitted that in the present proceedings where the plaintiff had adopted the incorrect form of proceedings and had thereby avoided the obligation to provide an affidavit of verification; and having regard to the other matters raised in this application, it was appropriate that the court should proceed to dismiss the proceedings for failure on the part of the plaintiff to adopt the correct form of proceedings.
Discussion and Conclusions.
21. There are several facts in this case that are not in dispute. First, the deceased was 76 years of age in 2021. He had undergone surgery for lung cancer on 24 June 2021. On 16 July 2021, he was considered by the medical team who had been caring for him in the hospital, as being fit for discharge from their care.
22. Secondly, it is accepted that he was transferred for convalescent care to the defendant's nursing home on 7 July 2021. It is also accepted that the deceased died at 19.10 hours that evening. The cause of death was pulmonary embolism with ischaemic heart disease. Those are the facts that do not appear to be in dispute between the parties.
23. While there may be some dispute between the parties as to the extent of the deterioration in the deceased's condition prior to the time of his death on 7 July 2021, the court is satisfied that there is credible evidence before it that the deceased's condition had deteriorated quite considerably after his arrival in the nursing home. There is evidence from the plaintiff as to what he saw when he visited his uncle that day. He has given cogent evidence in his affidavit as to the complaints that were made by him to the nurse about his uncle's condition. He has stated clearly that he brought these complaints to the attention of the nurse in the nursing home, who apparently agreed that his uncle's condition had deteriorated to such an extent that it would be appropriate to have a doctor come and examine him.
24. This evidence in relation to the deterioration of the deceased's condition is corroborated by the actions of the plaintiff that he took that day; in particular, by his contacting the GP practice where his uncle attended as a patient and by delivering a letter to that practice outlining his concerns about the deterioration in the health of his uncle and requesting that the GP at that practice should examine his uncle as soon as possible.
25. These facts have to be viewed in the context of the opinion given by Dr Soo in his medical report. It is appropriate to quote the opinion section in full. It is as follows:
"Pulmonary thromboembolism is a common complication following any type of surgery. Thoracic surgery patients are therefore also susceptible to this complication. It is reported to arise in around 10% of patients up to 30 days post operatively. Pulmonary thromboembolism can be associated with a mortality rate of up to 5% depending on the exact location of the pulmonary thrombus. As a routine, thromboembolism prophylaxis using low molecular weight heparin injections and elastic stockings are used immediately post operatively to prevent this severe complication.
Following discharge to the community, patients are encouraged to mobilise to prevent pulmonary thromboembolism.
Once pulmonary thromboembolism occurs, the consequences are devastating as demonstrated in this case. Location, early diagnosis and early treatment with anticoagulation (drugs to thin the blood) can be lifesaving.
In this case, Mr Patrick Cannon deteriorated acutely. In those situations, CPR is performed to salvage the situation. However, in most cases, it is unsuccessful.
I am unable to comment whether the clinical picture described by Mr Finbarr Tolan about Mr Patrick Concannon prior to the acute event was related to pulmonary thromboembolism. Pulmonary thromboembolism is diagnosed via a thorough clinical examination and confirmed with diagnostic radiological investigations using computed tomography (CT). However, a high index of suspicion is required. Therefore, it is my opinion that Mr Concannon should have been examined were he to have any clinical deterioration as compared to his clinical state while he was an inpatient. I also acknowledged [sic] it may not have changed the clinical outcome."
26. I turn now to deal with the three grounds on which it is submitted that the present proceedings should be struck out. I am not satisfied that the first ground justifies striking out the proceedings against the defendant. It is accepted that the plaintiff is named as the sole executor in the deceased's will. It is also provided in the 1961 Act that the personal representative of the deceased may bring a wrongful death action. I am satisfied on the basis of the authority of the decision in Casey v Casey, that where a person has been named as an executor in a deceased's will, and has instituted proceedings in connection either with the deceased's estate, or with the death of the deceased, but has not taken out a formal grant of probate, the appropriate course is for the court to stay the proceedings to enable the plaintiff to rectify the matter by taking out the requisite grant of probate. I would propose to adopt that course in the present action.
27. Turning to the second ground of an objection to the proceedings, which is on the basis that the plaintiff has not put himself in a position to establish that the defendant's negligence was the cause of death of the deceased. To put it another way, the defendant submits that taken at its highest, the evidence which has been obtained by the plaintiff in the form of the medical report furnished by Dr Soo, is not sufficient to cross the 'but for' test on causation, which is the test that is applicable in Irish law.
28. I accept that on the basis of the decision in Quinn v Mid Western Health Board, the general test for causation in Irish law is the 'but for' test. I also accept the submission that if one were to apply that test strictly, the evidence that has been obtained by the plaintiff thus far, being the report from Dr Soo, would not be sufficient to establish that but for the negligence of the defendant in failing to have the deceased examined promptly by a doctor upon his condition deteriorating rapidly, or upon such deterioration having him transferred back to the hospital, that death would not have occurred.
29. However, I am not satisfied that the test in law is as simple as the application of the standard 'but for' test to causation. Firstly, the court has to have regard to the fact that the plaintiff has put himself in a position to establish a prima facie case in negligence against the defendant. It is clear from the medical report furnished by Dr Soo that where a patient in the situation of the plaintiff's uncle is discharged into the care of a nursing home and where such patient's condition deteriorates following admission to the nursing home and when they are in the post-operative convalescent stage, the carers and medical personnel in the nursing home must be alive to the possibility of a thromboembolism. This means that any deterioration in the person's condition requires the immediate attention of a doctor, or the removal of the patient back to hospital.
30. It is noteworthy that in his replying affidavit sworn on 8 January 2025, Mr Tolan at paragraph 30 thereof refers to a conversation that he had with Dr Soo, wherein the doctor stated that where a patient shows any signs of deterioration in the nursing home compared to his clinical state when he was an inpatient in the hospital, the nursing home had a duty to have him clinically examined. He states that Dr Soo further stated that it is normal procedure to have the patient examined immediately by a doctor and the doctor will then decide whether to treat the patient in the nursing home or readmit the patient back to the hospital. Dr Soo is alleged to have stated that it is very common for patients to be readmitted to hospital in circumstances such as those that existed in this case.
31. While the decision in Quinn v Midwestern Health Board establishes that the general rule in Irish law is the 'but for' test in relation to causation, Kearns J also referred to a number of other decisions where a different test on causation and recoverability of damages had been applied. In the Quinn case, the infant plaintiff had been delivered at just over 39 weeks gestation. The claim made on behalf of the plaintiff was that she ought to have been delivered at not more than 35 weeks gestation when it was contended that she would have avoided all or substantially all of the brain damage which had occurred.
32. The defendants in that case had admitted negligence in the management of the pregnancy and that the plaintiff should have been delivered earlier than she was. However, the defendants contended that the plaintiff's brain damage was caused by an acute episode between weeks 28 and 30 of her gestation and that the outcome would not have been any different had she been delivered earlier than she was. In the High Court, O'Sullivan J held that the plaintiff had failed to establish on the balance of probabilities, that she would have avoided her injuries had she been delivered by week 35 gestation and dismissed her claim. The plaintiff had appealed to the Supreme Court.
33. As already noted, the Supreme Court held that it was not enough to show that the plaintiff's condition worsened during the period from the start of difficulties until delivery. It had to be further shown that early intervention would have prevented the damage. This was the 'but for' principle of causation which was long established in common law negligence actions.
34. In the course of his decision, Kearns J referred to the decision in Fairchild v Glenhaven Funeral Services Ltd [2003] AC 32, where the plaintiff employee had been employed at different times and for differing periods by more than one employer. He developed lung cancer as a result of the inhalation of asbestos dust at work. The House of Lords decided that in certain special circumstances, the court could depart from the usual 'but for' test of causal connection and treat a lesser degree of causal connection as sufficient, namely that the defendants' breach of duty had materially contributed to causing the claimant's disease by materially increasing the risk of the disease being contracted.
35. In the course of his judgment, Hutton LJ stated that trial judges should adopt the approach which had been taken by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1 and in cases such as the present one where the claimant could prove that the employer's breach of duty materially increased the risk of him contracting a particular disease and the disease occurred, but where in the state of existing medical knowledge he was unable to prove by medical evidence that the breach was a cause of the injury and that would be sufficient. This is known as the material contribution test.
36. In the course of his judgment in the Quinn case, Kearns J also referred to the Irish case of Philip v Ryan [2004] 4 IR 241, where the Supreme Court had to consider the quantum of damages recoverable in relation to a missed diagnosis of cancer, which had only been diagnosed some eight months later, with the effect that the cancer was more progressed and the plaintiff's life expectancy was accordingly shortened. In that case it was held that a plaintiff could recover damages for the loss of chance or the loss of opportunity to be advised correctly and treated accordingly. Kearns J went on to state that these decisions had to be seen as turning very much on their own particular facts.
37. This court is satisfied that in the present case, the issue of causation will be one of some difficulty. It is not appropriate for this court at this stage of the proceedings to reach any conclusion on what the correct legal test is to apply in circumstances such as the present. It will suffice to note that the issue of causation is not perhaps as clear-cut as the defendant would argue. In these circumstances, the court does not accept that it is appropriate to strike out the present proceedings on the basis that the plaintiff does not have a stateable cause of action against the defendant.
38. Turning to the final ground on which it is alleged that the proceedings ought to be struck out, which is on the basis that the plaintiff has proceeded on the wrong form of pleadings; the court is not satisfied that this is a ground on which the proceedings ought to be dismissed. Counsel for the defendant very fairly conceded that under s. 10(3) of the 2004 Act, where a plaintiff has failed to proceed with his action in the correct form of proceedings, being a personal injury summons, the court could direct that the action shall not be preceded with any further until the plaintiff complies with any such conditions as the court may specify, or the court could, where it considers that the interests of justice so require, dismiss the plaintiff's action.
39. The court is satisfied that it would not be in the interests of justice to dismiss the plaintiff's action against the defendant solely on the basis that he had proceeded by the wrong form of pleadings in his action. The court is not satisfied that there is any basis for arguing that the plaintiff's motivation in so doing was a desire on his part to avoid swearing an affidavit of verification, which he would have been required to do had he issued a personal injury summons.
40. The court is satisfied that the plaintiff has dealt with this action in an upfront and reasonable manner. He has pleaded the case in an extensive, but not overly prolix manner in his statement of claim. When requested by the defendant's solicitor, he furnished a copy of the will of his uncle in which he was appointed sole executor. He also furnished a copy of the medical report from Dr Soo. In these circumstances, it cannot be alleged that the plaintiff has been attempting to hide pertinent matters from the defendant's solicitor. He also furnished them with a copy of the letter that he delivered personally to the GP on the afternoon of 7 July 2021.
41. In these circumstances, the court is satisfied that the appropriate course would be for the court to make an order that the pleadings to date shall be deemed to be in lieu of a personal injury summons. The court will give a direction in the final order that the plaintiff is to furnish an affidavit of verification in respect of his plenary summons and statement of claim.
42. Finally, the power of the court to strike out proceedings that constitute an abuse of process of the courts, or which fail to disclose a reasonable cause of action, or which are bound to fail, or which have no reasonable chance of succeeding, is governed by O.19, r. 28 of the Rules of the Superior Courts, as amended and inserted by SI 456/2023, which has been effective since 22 September 2023. The court is satisfied having regard to the decision of Sarah Phelan J. in Davey v Wallace and Another [2025] IEHC 146, that the correct interpretation of the recast O. 19, r. 28 is that the previous authorities remain relevant and that the new provision in the rules has the effect of amalgamating the previous provisions that were contained in the rules and the jurisdiction that was previously exercised by the court under its inherent jurisdiction.
43. In these circumstances, the court is satisfied that the previous authorities which establish that the jurisdiction to strike out proceedings is one that must be exercised sparingly; and the principles that had been set down in the previous case law as identified in O'Malley v National Standards Authority of Ireland and Anor [2024] IEHC 500 and Fay v Tegral Pipes Limited [2005] 2 IR 261; Barry v Buckley [1981] IR 306 and Kelly v Allied Irish Banks [2019] IESC 72; all remain relevant.
44. The court is satisfied that for the reasons set out herein, it would not be in accordance with the dictates of justice for the plaintiff's action to be dismissed as against the defendant. The court is satisfied that grounds one and three raised by the defendant are somewhat technical grounds that can be easily overcome by the necessary directions which can be given and which the court will give in its final order.
45. In relation to the central ground on which it was submitted that the proceedings should be dismissed against the defendant, being that the plaintiff has failed to establish that he has medical evidence that would get over the 'but for' test in relation to the alleged negligence of the defendant being the cause of the deceased's death; for the reasons set out earlier in this judgment the court is satisfied that this question is a nuanced legal question on which evidence will have to be heard by the court and legal argument will have to be considered. In these circumstances it cannot be said that the plaintiff's action for damages in these proceedings is bound to fail. Accordingly, the court refuses to grant the reliefs sought by the defendant in its notice of motion dated 11 April 2024.
Final Order.
46. The final order of the court shall be as follows:
(a) refuse the reliefs sought by the defendant in its notice of motion dated 11 April 2024;
(b) there will be a stay placed on the proceedings until the plaintiff shall file an affidavit exhibiting a grant of probate to the estate of Patrick Concannon deceased; and
(c) there will be a stay placed on the proceedings pending the filing by the plaintiff of an affidavit of verification in respect of his plenary summons and statement of claim.