Gaeilge

Title:	Doyle (as per. rep. of the Estate of Bridget Doyle, Deceased) -v- Dunne
Neutral Citation:	[2016] IESC 68
Supreme Court Record Number:	39/2014
High Court Record Number:	2011/5590 P
Date of Delivery:	11/17/2016
Court:	Supreme Court
Composition of Court:	Clarke J., MacMenamin J., Dunne J., Charleton J., O'Malley J.
Judgment by:	O'Malley Iseult J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring O'Malley J. Link Clarke J., MacMenamin J., Dunne J., Charleton J.

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Clarke J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.

BETWEEN/

Judgment of Ms. Justice O’Malley delivered the 17th day of November, 2016

Introduction
1. This judgment deals with a preliminary issue as to whether the plaintiff’s cause of action for damages for alleged medical negligence survived her death. Unfortunately, the plaintiff passed away after the High Court hearing, at which she was unsuccessful, but before the conclusion of the hearing of her appeal before the Supreme Court. It is asserted that, by virtue of the relevant common law rules, her cause of action survives for the benefit of the estate notwithstanding the provisions of the Civil Liability Act 1961, as amended. It is also argued that, in any event, the proceedings include a claim for pecuniary loss in respect of care provided to the plaintiff by her son, Mr. Edward Doyle and that this claim survived her death.

Background
2. At all material times the plaintiff lived in her family home with her son and his wife. The evidence was that Mr. Doyle acted as his mother’s fulltime carer and that she had relied on him since suffering from a brain haemorrhage in 1996.

3. On the 27th January, 2010, at the age of seventy-nine years, the plaintiff underwent surgery to remove a cataract from her left eye. Unfortunately the surgery was not a success, and post-operative complications necessitated removal of that eye on the 3rd February, 2010, in order to prevent damage to her right eye. She was fitted with a prosthetic eye. Further complications arose, requiring further interventions later in 2010 and in 2012. Her daily life was affected in that her independence was reduced, she was often depressed and she was reliant on family members for care.

4. The proceedings alleging negligence and breach of duty were initiated by way of personal injury summons issued on the 21st June, 2011. It was not alleged that the operation had been carried out negligently and in essence the plaintiff's claim was that she had not given informed consent to the surgery and to the administration of a general anaesthetic. It was pleaded that she had been told that the surgery would only involve a 20 minute procedure, under local anaesthetic, as a day patient and that there was no risk attached to it. She would not have consented had she been made aware of the risks associated with the operation. It was alleged that she had signed the consent form in circumstances amounting to duress after she had been given medication and that she could not understand it.

5. No particulars of any financial loss were set out in the summons. A notice for particulars sent by the defendant, dated January 2012, requested confirmation that there was no claim for any items of special damage. In reply, the plaintiff’s solicitor stated that she had a medical card and that no claim was being made in respect of medical expenses.

6. By letter dated 31st October, 2012, and headed “Further Particulars of Injuries”, the plaintiff’s solicitor set out further details of the impact of her injury on her life. It was stated, inter alia, that she no longer cooked for herself. The letter contains the following paragraph upon which emphasis is now placed:

“The Plaintiff’s son has become her main carer. If he has to leave her for long periods, he ensures that a family member is present. Her judgment is poor due to her visual impairment i.e. she misplaces a cup when attempting to place it on a saucer. She spills liquids. She has burned her hands when putting fuel on the fire and also, when using the cooker. Therefore, she is not allowed to use the cooker or handle kettles of boiling water. Each morning the Plaintiff’s eye socket is congealed with blood and yellow matter. Her son has to remove the eye, cleanse the socket, administer eye drops etc. He has to repeat this procedure two to three times per day depending on the level of discharge from the socket. He also administers her medication, cooks her meals and generally looks after her.”

The High Court hearing
7. The matter came on for hearing on the 12th December, 2012. This Court is not, for present purposes, concerned with merits of the case as it ran in the High Court. It is however necessary to refer to certain aspects.

8. The plaintiff herself was not called to give evidence until the third day of the hearing. It quickly became apparent that there was an issue as to her capacity. As an example, she was under the impression that the operation had taken place in Tullamore rather than in Dublin. The trial judge adjourned the hearing until the 21st December, when he directed that the matter should proceed on the basis that she was a person of unsound mind not so found. The title of the proceedings was amended and the plaintiff’s son Mr. Doyle acted as the next friend. The hearing was then adjourned until the 26th March, 2013, when the defendant went into evidence. There was then a further adjournment for written and oral submissions and the hearing concluded on the 26th June, 2013.

9. It is also necessary to refer to a particular aspect of the evidence given by the plaintiff’s son, Mr. Doyle. He described the care he gave in respect of his mother’s prosthetic eye. He took it out twice a day, cleaned it and put it back. He also referred to the fact that it was too dangerous for her to make a cup of tea for herself, and said, in effect, that she had aged ten years as a consequence of what had happened to her.

10. The judgment of the High Court (De Valera J.) was delivered on the 20th December, 2013. It will suffice here to say that the trial judge held on the evidence that the requirements for disclosure of information to patients in elective surgery had been met. Though he sympathised with the plaintiff and with her son, and acknowledged the considerable impact on her life, he held that no liability could be attributed to the hospital. As a result the claim was dismissed.

11. The notice of appeal was lodged on 30th January, 2014, asking this court to set aside the judgment of the High Court and order a new trial on the issues in the High Court, or alternatively to enter judgment for the plaintiff and assess the damages.

12. On the 15th May, 2014, counsel applied in court for an early hearing date. The plaintiff was at that stage terminally ill with advanced pancreatic cancer, and the application for priority was based upon the opinion of her oncologist that she was unlikely to survive for a further two months and might not live that long. The appeal was therefore listed for hearing on the 3rd June, 2014. It was called on by counsel for one day but in the event did not conclude on the hearing date and was adjourned to the 31st July, 2014, for the completion of argument. Unfortunately the plaintiff passed away on the 11th July, 2014. On the date fixed for the resumption of the appeal, the Court was informed of this event.

13. There appears to have been an unfortunate misunderstanding as to what should happen next. The plaintiff’s representatives appear to have understood that the appeal on the substantive issue should continue and that the issue of the consequences of the plaintiff’s death would become relevant only if the Court decided to allow the appeal. The members of the Court appear to have had a different understanding, and on the 24th November, 2014, delivered a judgment in which the appeal was dismissed on the basis that because of the plaintiff’s death, and since (as the court saw it) the claim had been for general damages only, there was nothing by way of remedy or relief left in the claim for the Court to adjudicate upon or remit to the High Court.

14. This judgment was set aside on foot of a motion brought on behalf of the plaintiff, in which it was complained that counsel had been specifically directed not to address the question whether the action survived. It is relevant, for the purposes of the current issue, to note that the case was made in support of the application that, apart from the contention that the claim for general damages survived, there was a claim in respect of care services provided by Edward Doyle.

15. The plaintiff’s solicitor averred that before the High Court hearing he had obtained a report from a nursing consultant dealing with the valuation of those services, and that the paragraph in the letter of updated particulars quoted above came from that report. The nursing consultant valued the care services provided by Mr. Doyle between the 10th February, 2010, and the 25th May, 2012, at €89,902.40.

16. The solicitor deposed that it had been decided by senior counsel and himself not to call the author of the report, because the reality was that Mr. Doyle would continue to provide services to his mother.

“On that basis, the trial judge would make an award in respect of Mr. Doyle’s services necessitated by the injuries in issue as general damages for pecuniary loss. There would thus be a single award of general damages for both pecuniary and non-pecuniary loss.”

17. By order of this Court made on the 20th January, 2015, the judgment of November 2013 was set aside. The question as to the survival of the cause of action was set down to be determined as a preliminary issue, to be heard after the grant of probate was taken out and the proceedings reconstituted. That procedure having been carried out, the preliminary issue now comes before the Court for determination.

Section 7 of the Civil Liability Act, 1961
18. Insofar as is relevant, the section reads as follows:

(1) On the death of a person on or after the date of passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.

(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.

19. The “excepted” causes of action are set out in s. 6 and are not relevant here.

Consequences of the appellant’s death - submissions

The claim for general damages – the plaintiff’s submissions

20. On behalf of the appellant it is submitted that s. 7 of the Act is of relevance only where the cause of action would otherwise have abated on a plaintiff’s death by virtue of the common law principle actio personalis moritur cum persona. The contention is that in the instant case the cause of action survives under the relevant common law rules, and not by virtue of s.7(1), that the section therefore has no relevance and that the limitation on the recoverability of damages imposed by s.7(2) does not apply.

21. This submission is based on the proposition that an exception to the common law rule still exists. It is contended that this must be so, since, it is said, the causes of action set out in s.6 are still governed by the rule.

22. It is submitted that at common law, while an action in tort for damages for personal injuries generally abated on the plaintiff’s death, this rule did not apply if the case had been prosecuted to final judgment before the date of death. It is argued that, in this case, the High Court had entered a final judgment in the matter and the plaintiff’s appeal was in the course of being heard when she died. Reliance is placed in this respect on Alford v. Begg (1848) 12 Ir. L.R. 528 and Davoren v. Wootton [1900] 1 I.R. 273.

23. The very short report in Alford v. Begg at the reference cited records the fact that the matter came before the Court of Exchequer for argument on a bill of exceptions. The court was informed that one of the parties had died, and it was submitted that the suit had abated. Pennefather B. is reported as saying:

“I think that there being a verdict, and the hearing of the cause having been delayed by the act of the Court, the suit ought not to abate, unless some authority can be found for it.”

24. Pigot C.B. observed that no authority would be found, i.e. to support the contention that the suit had abated.

25. Reference is also made to Davoren v. Wootton [1900] 1 I.R. 273. In that case the defendants had been found by the court of trial to have fraudulently induced the plaintiff to acquire shares in a company. The court ordered them to pay a certain sum in damages, less the value of the shares, and an inquiry was directed to ascertain that value. The defendants appealed before that inquiry could take place. One of them died after the appeals were opened but before arguments had concluded. It was held by the Court of Appeal that the proceedings could not be continued against the personal representatives of that appellant. The damages were as yet unliquidated and unascertained, and it could not be shown on the facts of the case that the deceased’s estate had benefited from his wrongdoing. In those circumstances the action died with him.

26. The judgments expressly contrast this situation with that of a case where a claim for damages had been converted into a judgment debt. However, counsel argues that the point to be taken from it is that a final judgment in the court of trial prevents abatement.

27. According to counsel, it therefore matters not that the finding in the High Court was against the plaintiff in this case - what is relevant is that a final judgment has been entered. If it were otherwise, and a distinction were to be drawn between successful and unsuccessful plaintiffs after trial at first instance, it is said that an unsuccessful plaintiff’s constitutionally guaranteed right to appeal would be negated. Had the plaintiff succeeded in the High Court, her cause of action would have been translated into a judgment debt. If she had then appealed the adequacy of the award, the judgment debt would have been unaffected by her death. It is argued that she was unsuccessful at trial because of an error by the trial judge. It is therefore claimed that it would be unjust to deprive her of the judgment that she should have obtained and to relieve the defendant of responsibility for his culpable actions.

28. Reference is made to criticisms of the general common law rule in McMahon & Binchy, Law of Torts, (4th ed.). At p. 1483 the authors pose the questions whether, where one of the parties to an existing tort dispute dies, the right to sue or be sued survives for, or against, the estate.

“The common law answer to [that] question was contained in the Latin maxim actio personalis moritur cum persona. Death ended all actions in personal torts. The exact reasons for this rule are rather obscure and the rule is difficult to justify when it is appreciated that contract actions (except in relation to personal contracts) survived for or against the estate of the deceased. It has been suggested that the late development of the tort remedy as an incident to criminal punishment in the old appeal of felony and trespass which followed it meant that, when the deceased died, criminal punishment on his or her person being no longer possible, the criminal action fell and the tort action abated with it.

In any event, whatever its origins and its rationale, some major statutory exceptions were made to the rule, the principal ones being contained in old statutes of 1285 and 1330 (applied to Ireland by Poynings’ Law 1495), and in s 31 of the Debtors’ (Ireland) Act 1840. These enactments provided the personal representatives of the deceased with an action in respect of the trespass to real or personal property of the deceased committed during the deceased’s lifetime. Other more recent exceptions were to be found in s 117 of the Road Traffic Act 1961 (in relation to personal liability for negligent driving), in s 23 of Air Navigation and Transport Act 1936 (in respect of damage caused by aircraft to persons or property) and in s 6 of the Fatal Injuries Act 1956.”

29. Counsel submits that this court should not “extend” a rule of abatement which derived from the view that a tort action was in the nature of a personal “vendetta”.

30. It is further submitted that if the court were to depart from the rule applied in Alford v. Begg injured persons would run the risk that their right to damages could be arbitrarily curtailed as a result of delay in the judicial process. It is argued that there was “indefensible” judicial delay in this case, and that the State would have to be found to be in breach of Article 6 of the European Convention on Human Rights if that delay was found to entail the loss of the plaintiff’s claim for general damages. This complaint is based on the fact that, firstly, the High Court judgment was given nearly a year after the first hearing date, in circumstances where the trial judge knew that the plaintiff was physically and mentally infirm. Secondly, the appeal hearing did not conclude within the two months predicted by the oncologist as being the outermost expected survival time of the appellant.

The claim for general damages – the defendant’s submissions

31. The defendant submits that s.7 of the Act of 1961 replaced the maxim actio personalis moritur cum persona and that there is therefore no legal basis for disapplying s.7(2).

32. Referring to the passage from McMahon & Binchy cited above, the defendant points out that it is immediately followed by a paragraph headed “The Present Law”, which reads as follows:

“The law on this matter was amended and consolidated in the Civil Liability Act 1961 (ss 6 – 10). The general rule now is that all causes of action (other than ‘excepted causes of action’ within the meaning of the 1961 Act) vested in a deceased person or subsisting against him or her, survive for the benefit of, or against, the deceased person’s estate as the case may be…

Where a person dies, however, and a cause of action vested in that person survives for the benefit of his or her estate, the damages recoverable in such an action cannot include damages for purely ‘personal’ loss. Accordingly, exemplary damages, damages for any pain and suffering or personal injury or for loss or diminution of expectation of life or happiness are irrecoverable in any such action.”

33. Quite apart from the legislative provisions, the relevance of Alford v. Begg is disputed on the basis that it was not a personal injuries claim but, as is clear from a report of an earlier ruling in the case at (1847) 10 Ir. Law Rep. 104, concerned a claim in respect of work carried out pursuant to a building contract. Contract claims had never been subject to the general common law rule applicable to personal injuries.

34. The defendant says that no injustice is caused by the exclusion of damages for pain and suffering after the death of a plaintiff. Section 7 is designed, it is argued, to uphold the compensatory nature of damages for personal injuries and not to afford a windfall to the personal representatives in the event of death. It is agreed that if a plaintiff wins in the High Court there will be a judgment debt that the estate can enforce, but in this case there has been no award. Damages for pain and suffering cannot be awarded other than to the person who has undergone that pain and suffering.

35. The defendant points out that the proceedings have been reconstituted for the benefit of the estate. Section 48 of the Succession Act 1965 enables a personal representative to sue, for the benefit of the estate, in respect of causes of action which survive by virtue of s.7 of the Civil Liability Act. In those circumstances reliance cannot be placed on the alleged survival of the common law exception.

The claim for pecuniary loss – the plaintiff’s submissions

36. The plaintiff makes an alternative argument to the effect that if the main action was not saved by the common law rules, there is nonetheless a viable claim in these proceedings for pecuniary loss. While s.7(1) would bar the recovery of damages for pain and suffering, the estate would be entitled to the benefit of damages in respect of the services provided to the plaintiff by her son. An award under this heading would not relate to special damages awarded on foot of expenses actually incurred, and would not require to be specifically pleaded as such. It would, rather, be similar to an award for loss of employment opportunity, to be dealt with by way of a lump sum in general damages. Nonetheless it would be in respect of pecuniary loss and not for any of the matters excluded by s.7(2). The entitlement to damages under this heading ran up to the date of the plaintiff’s death.

37. It is submitted, by reference to the letter providing updated particulars quoted at paragraph 6 above, that this claim was pleaded "in detail". It is further argued that it was supported by the unchallenged evidence of Mr. Doyle. Counsel says that the focus of any debate in the High Court hearing was on liability. He accepts that a claim in respect of care was not referred to in his opening, but maintains that he had understood that the trial judge would read the pleadings and realise that there was such a claim.

The claim for pecuniary loss – the defendant’s submissions

38. The defendant accepts that it is possible for a plaintiff to maintain a claim in respect of care provided by a family member, and also that where a claim of this nature is made it would survive the death of the plaintiff, but submits that no indication of such a claim was given to either the defendant, in advance of the hearing, or to the High Court. The trial judge was never told that he was being asked to include it in a lump sum award. Counsel points to an exchange recorded on Day 3 of the hearing, in which the trial judge commented, without contradiction, that there had been no evidence of special damage.

39. The defendant says that if he had been aware of such a claim it would have been investigated. Claims in respect of care are normally valued by reference to the cost of nursing care, and in any event some figure must be specified. The opportunity to look into the claim is now gone. It is argued that while it was apparent from Mr. Doyle’s evidence that he had cared for his mother since 1996, he gave no evidence by which the hours of care given by him after the operation in 2010 could be quantified or valued.

40. In respect of the allegation by the plaintiff that there has been judicial delay in both the High Court and the Supreme Court, the defendant says that the adjournments in the case in the High Court were necessitated by the way in which the plaintiff’s case was conducted. Specifically, it is said that the evidence of the plaintiff, not called until the third day of the hearing, made it apparent that she could not have been in a position to give instructions to her legal representatives and required an adjournment for the purpose of considering wardship proceedings. The appeal hearing in this court had to be adjourned because the oral submissions on behalf of the plaintiff took longer than predicted by counsel.

Discussion and conclusions
41. It seems to me that the case made on behalf of the plaintiff depends upon a finding, firstly, that the legislature did not intend, or did not succeed in, sweeping away the rule represented by the maxim actio personalis moritur cum persona, and that some aspect of the exception to that rule survives; and secondly, that if necessary that exception should, as a matter of constitutional fairness, be extended to cover personal injury actions.

42. I find it impossible to accept the contention that vestiges of the common law rule on abatement in tort actions have survived the enactment of s.7 of the Civil Liability Act 1961. The section expressly refers to "all" causes of action other than those specifically excluded. A personal injuries action does not fall into the excluded category. The position therefore is that such an action now survives, by virtue of the section, where it would have abated prior to the legislation.

43. The argument made is that in this particular case the action would have survived in any event because of the fact that there had been a final order in the High Court. I think that this argument is based on a misunderstanding of Alford v. Begg. Quite apart from the fact that it was not a personal injuries action, the point was that a successful plaintiff had an award of damages that could be enforced as a judgment debt, without reference to the original basis for the claim. The wrong done by the defendant had been measured in money terms and the money could be recovered.

44. Where, by contrast, a plaintiff has been unsuccessful at first instance he or she is in fact in a weaker position than a plaintiff whose case has yet to be heard. An appeal from the High Court is not a de novo hearing, and the appellant has to establish error on the part of the trial judge. There is no enforceable judgment in his or her favour. I do not see that this creates an unconstitutional unfairness or discrimination as between plaintiffs. It has been submitted that unfairness arises where the estate could establish that the failure in the High Court was due to an error by the trial judge. By this logic the estate of a plaintiff whose case had not been heard could argue that it would have succeeded had it been heard before the plaintiff's death. The intention of the Oireachtas is clear in this regard - a claim for general damages for pain and suffering may not be maintained after the death of the person who sought compensation for that pain and suffering. The beneficiaries of the estate cannot complain that they have been unfairly denied compensation for the suffering of another individual.

45. I do not accept that delay within the judicial system has brought about this situation in the instant case. There has been no complaint in relation to pre-trial delay. The initial hearing was within two months of the updated letter for particulars, which presumably marked the point at which the case was ready to go on. By the time of the hearing, it must have been apparent to the plaintiff's representatives that there was a difficulty in terms of her ability to give evidence, and it is not surprising that when she was eventually called on the third day her evidence was such as to necessitate an adjournment to consider how to proceed. No indication of any problem had been given to the court before that. Nor is it surprising that judgment was ultimately reserved. It is not suggested that any representation was made to the trial judge that the plaintiff's state of health at that stage was such as to require an expedited judgment.

46. When the application for priority was made in this court the plaintiff was undoubtedly very ill. It was acknowledged that it was an appropriate case for priority and a hearing date was set for three weeks later. It was counsel for the plaintiff who estimated that the matter would take one day. That turned out to be incorrect. The adjourned hearing date was set for the last day of that legal term which, again, was a priority listing. In those circumstances it is unreal to suggest that the court system is somehow to blame for the fact that the matter was not finalised before the plaintiff's death.

47. As far as the potential claim in respect of the care services provided by Mr. Edward Doyle is concerned, I am forced to conclude that the defendant is entitled to say that it was never properly constituted. Such a claim may be maintained but it must be notified to the defendant and to the court. I do not regard the letter of updated particulars as sufficient in this regard. It is clear that this aspect of the case was never specifically referred to in the High Court.

48. The evidence of Mr. Doyle certainly established that he was caring for his mother and that she required such care. However, given that he had been providing some level of care since her stroke in 1996 it would have been necessary to go into a degree of detail as to the time he spent with her, and how that time had increased after the operation.

49. If counsel thought that the claim had been sufficiently pleaded, and that the trial judge was in error in making the comment that there was no claim for special damages, that was the time to draw it to his attention. An assumption that it would be taken into account in a general award of damages was not a safe way to proceed in a case where liability was very much in issue.

50. In those circumstances I would determine the preliminary issue in favour of the defendant.