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Cite as: [2014] IESC 69
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Judgment Title: Doyle -v- Dunne Neutral Citation: [2014] IESC 69 Supreme Court Record Number: 039/2014 High Court Record Number: 2011 5590 P Date of Delivery: 20/11/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Laffoy J. Judgment by: Laffoy J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No. 039/2014] Denham J. Murray J. Laffoy J. BETWEEN BRIDGET DOYLE (A PERSON OF UNSOUND MIND NOT SO FOUND) SUING BY HER SON AND NEXT FRIEND EDWARD DOYLE PLAINTIFF/APPELLANT AND
DANIEL DUNNE DEFENDANT/RESPONDENT Judgment of Ms. Justice Laffoy delivered on 20th day of November, 2014 The issue The proceedings in the High Court
4. Apart from the allegations of negligence and breach of duty in the indorsement of claim, it was also alleged that “the said surgery and the said general anaesthesia was performed without the informed, or any, consent of the [appellant] and the [respondent], their servants or agents, thereby trespassed to the person of the [appellant]”. 5. While it was pleaded in the indorsement of claim that the appellant had sustained severe personal injuries and had suffered loss and damage by reason of the alleged wrongdoing of the respondent and that the plaintiff claimed damages for negligence, breach of duty and trespass to the person, no particulars whatsoever of any pecuniary loss or damage she was alleged to have suffered were outlined in the indorsement of claim. This point was raised in a notice for particulars served by the respondent’s solicitors in which they sought confirmation that the appellant was not making any claim for any items of special damage. The response of the appellant’s solicitors was as follows:
6. In the proceedings as initiated, the appellant sued in her own name. The action came on for hearing in the High Court on 12th December, 2012. On the first day of the trial, the appellant’s son, Edward Doyle (Mr. Doyle), gave evidence, as did an expert medical witness called on behalf of the appellant. The second day of the trial was taken up with further evidence of expert medical witnesses called on behalf of the appellant. On the third day of the trial, 14th December, 2012, the appellant was called to give evidence, but after a short time an issue arose as to her capacity. The trial judge heard submissions on behalf of the appellant and the respondent and then adjourned the hearing until 21st December, 2012. On 21st December, 2012, the trial judge decided that the matter should go ahead on the basis that the appellant was a person of unsound mind not so found. The title of the proceedings was accordingly amended so that the appellant was described as a person of unsound mind not so found suing by her son and next friend, Mr. Doyle. The matter was then adjourned and the hearing was resumed on 26th March, 2013, when two doctors who had attended the appellant in the Hospital testified on behalf of the respondent. The matter was further adjourned to enable the parties to exchange written submissions. Oral submissions were heard in the High Court on 26th June, 2013 and, as has been stated, judgment was delivered on 20th December, 2013. 7. In his judgment, the trial judge addressed the core substantive issues in the proceedings as follows (at para. 12):
The appeal
(b) enter judgment for the appellant and assess the damages to which the appellant was entitled. 9. The appeal, having been given priority because the Court had been informed that the appellant was terminally ill, was assigned a hearing date of 3rd June, 2014. On that day the Court had the benefit of written submissions on behalf of the appellant and the respondent and the Court heard oral submissions on behalf of the appellant and oral submissions in response on behalf of the respondent. However, there was not sufficient time to hear counsel for the appellant in reply. Accordingly, the matter was adjourned to a date to be fixed to hear counsel for the appellant in reply. The date fixed for the resumed hearing was 31st July, 2014. 10. In the interim period between the first hearing and the resumed hearing, regrettably, the appellant had died. Her death was unrelated to the personal injuries which were alleged to form the basis of her claim in the proceedings. At the resumed hearing there was before the Court an affidavit sworn by Mr. Doyle on 29th July, 2014 in which he averred that the appellant had died on 11th July, 2014 and exhibited her death certificate. He also exhibited what he averred was a true copy of her last will dated 16th March, 1998, in which she had appointed him the sole executor thereof. Mr. Doyle sought an order pursuant to Order 58, rule 8 of the Rules of the Superior Courts 1986 and pursuant to the Court’s inherent jurisdiction granting leave to him to proceed with the appeal on the resumed hearing thereof as executor of the last will of the appellant. Understandably, the will of the appellant relied on by Mr. Doyle as being her last will and testament had not been admitted to probate and he had not the status of personal representative at that stage. In the circumstances, the Court made no order amending the title to the proceedings but decided to hear the remainder of the appeal on a de bene esse basis. 11. The legal representatives on record for the appellant helpfully had made available to the Court extensive “Points in Reply” in writing on the substantive issues. Moreover, the Court heard oral submissions from counsel for the appellant. The position, accordingly, is that the parties to the appeal have obtained as full a hearing of the appeal as they are entitled to, if the Court still has jurisdiction to adjudicate on the appeal. 12. Anticipating that it might be argued on behalf of the respondent that the appellant’s cause of action and claim did not survive her death, counsel for the appellant furnished outline written submissions to the Court addressing that issue and made oral submissions. The Court also heard from counsel for the respondent on the issue. The Court, having reserved judgment on the issue, is satisfied that it does not require any further submissions from the parties. The law
(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.” 14. Sub-section (3) of s. 7 deals with a situation where a cause of action survives by virtue of subs. (1) for the benefit of the estate of a deceased person, and the death of such person has been caused by the circumstances which gave rise to such cause of action. Clearly, subs. (3) has no application to the appellant’s proceedings or this appeal. Similarly, subs. (4), which provides that the rights conferred by s. 7 are in addition to rights conferred on the dependents of deceased persons by Part IV of the Act of 1961, has no application to the appellant’s proceedings or this appeal. 15. The position of the respondent at the resumed hearing was not that the appellant’s cause of action, such as was vested in her at the date of her death, did not survive for the benefit of her estate in accordance with subs. (1) of s. 7. Rather, the position of the respondent was that, having regard to subs. (2), no damages were recoverable for the benefit of the estate of the appellant, because the only damages claimed in the proceedings were excluded from recoverability by virtue of subs. (2), being damages for pain, suffering and personal injury. In particular, it was emphasised on behalf of the respondent that there was no claim for special damages. That was not contradicted on behalf of the appellant. 16. Counsel for the appellant recognised that the current law, as amended and consolidated in the provisions of the Act of 1961, replaced the common law maxim actio personalis moritur cum persona (a personal action dies with the person), which has been effectively abolished. A useful summary of the application of that maxim is to be found in a footnote (fn. 4) to paragraph 1279 of Volume 103 of the fifth edition of Halsbury’s Laws of England, being the second volume on “Wills and Intestacy”, where it is stated:
19. The theory of merger or transit in rem judicatam is explained as follows in Delany and McGrath on Civil Procedure in the Superior Courts, third edition, at para. 32 - 57:
21. It is difficult to see any logic in that proposition, particularly when it is considered in the context of s. 7(1) and (2) of the Act of 1961. The appellant was unsuccessful in the High Court and her claim was dismissed. However, by virtue of Article 34.4.3° of the Constitution she had a constitutional right to appeal the decision of the High Court to this Court. She did so, seeking to have the judgment of the High Court set aside. At the time of the appellant’s death, her appeal was part heard and it was clear that the appellant intended to pursue it to conclusion. In those circumstances, it cannot be the case that the appellant’s cause of action had merged in the judgment of the High Court. What this Court was asked by the appellant to do was to set aside the judgment of the High Court and either remit the matter to the High Court for re-hearing or alternatively substitute its own judgment, if that were possible. If the appeal had progressed to conclusion during the lifetime of the appellant it could only have been determined on the basis of the cause of action asserted by the appellant and on the basis that it still existed. If this Court were to allow the appeal and set aside the judgment and either deal with the matter itself or remit it to the High Court, it would be doing so on the basis that the appellant’s cause of action was not extinguished but still existed. In short, the theory of merger, although relevant in a different context as explained in paragraph 19 above, does not come into play in the situation which has arisen in this case. 22. The situation which has arisen in this case is governed by s. 7 of the Act of 1961. By virtue of subs. (1), it is undoubtedly the case that the appellant’s cause of action survived her death for the benefit of her estate. However, subs. (2) of s. 7 precludes the estate of the appellant from recovering damages for any pain or suffering or personal injury. The reality of this case is that the appellant’s claim, as pleaded and as pursued in the High Court, whether founded on alleged negligence, breach of duty or trespass to the person, was in its entirety a claim for unliquidated general damages for pain, suffering and personal injury. There is no other component for remedy or relief in the appellant’s claim, whether for special damages or otherwise. In the circumstances, when regard is had to the s. 7(2) preclusion, there is nothing by way of remedy or relief left in the claim for this Court to adjudicate on or to remit to the High Court. 23. Accordingly, applying s. 7 of the Act of 1961, the Court must dismiss the appeal. 24. Counsel for the appellant submitted that the outcome which flows from the decision which the Court has determined it must make is not a reasonable outcome and that it is entirely arbitrary. It was questioned what justification could be advanced for the rule from which such an outcome ensues, where the accident of death between judgment and final determination of the appeal acts to defeat the right of appeal which inheres in the appellant by virtue of having obtained a judgment of the High Court. On that point, it is pertinent to recall that, as a matter of fact, the judgment of the High Court was that the plaintiff’s claim be dismissed. 25. Counsel for the appellant also submitted that the outcome, in the circumstances of this case, is so grossly unreasonable, punitive and devoid of rational justification as to amount to an arbitrary interference with the alleged previously acquired right of the plaintiff and her estate and it was submitted that it contravenes various provisions of the European Convention on Human Rights, including Article 6.1 and Article 13, and that it also contravenes the European Convention on Human Rights Act 2003, internalising the Convention in domestic law. While the outcome which flows from the decision of this Court may justify a sense of disappointment, even grievance, on the part of the beneficiaries of the appellant’s estate and of her legal advisers, who put considerable effort and skill into prosecuting her claim on her behalf, it is the outcome which ensues from the decision the Court must make, having regard to the provisions of subs. (1) and subs. (2) of s. 7 of the Act of 1961, which are clear and unambiguous and have been in force for over fifty years. Costs | ||||||||||||||||