Supporting Documents:
86-17 AFL.doc86-17 Rspndt Notce.pdf87-17 AFL.doc87-17 Rspndt Notce.docx

THE SUPREME COURT

DETERMINATION

BETWEEN

Result: The Court does not grant leave to appeal.

Reasons Given:

Jurisdiction

1. These applications relate to two orders made by the Court of Appeal, affirming orders made in the High Court dismissing the plaintiff’s/applicant’s proceedings against, respectively, the first and second named defendants (AFL No. 87/2017) and the third named defendant (AFL No. 86/2017). In each instance the court considered that the applicant’s claims were bound to fail.

2. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

3. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

The proceedings

4. The applicant has a legal qualification and is acting for himself in this matter. He has previously sued the HSE and others for failing to diagnose a heart condition in 2010 and 2011, resulting in his having to travel to the USA for surgery in 2012.

5. By plenary summons dated the 29th January 2014 the applicant claimed damages for negligence and breach of duty (including statutory duty), fraud, injurious falsehood and breach of contract. The first named defendant (“the HSE”) is sued as being “the statutory entity of State responsible for the provision of medical care.” The second and third named defendants are consultant cardiologists, practising, respectively, in Letterkenny and Cork. The fourth named defendant is described by the applicant as a private limited company responsible for the provision of medical care at the Wellington Hospital, St. John’s Wood, London. The proceedings as against that defendant were struck out on consent on the 6th November 2015.

6. According to his statement of claim (dated the 22nd October 2014), the applicant has congenital heart disease. He underwent surgery in the United States in March 2012 to repair a hole in his heart, and thereafter sought follow-up treatment in Ireland. He claims that all of the defendants have refused to provide medical care to him and have prevented the proper management of his medical conditions.

7. The proceedings claim damages, including exemplary and aggravated damages, for negligence, fraud, injurious falsehood, breach of statutory duty and breach of contract. The applicant has confirmed that he is not seeking damages for personal injuries and the only loss claimed is for the (as yet unspecified) cost of travel and treatment abroad.

8. The allegations of negligence and breach of duty as against the HSE and the second defendant may be summarised as follows:

• In May 2012 the HSE cancelled a cardiology appointment for the applicant and removed him from the waiting list on false pretences.

• When the applicant was admitted to hospital in June 2012, significant abnormalities were detected but were not properly investigated by the HSE and the second defendant. Specifically, these defendants refused to perform a “bubble study”.

• In July 2012 the applicant attended the second defendant and was prescribed medication. The HSE and the second defendant have refused to identify the condition for which it was prescribed.

• In September 2012 the second defendant wrongly advised his GP that his echocardiogram was normal; arranged an invasive coronary procedure without explanation or discussion; advised the implantation of a stent without explanation; and refused to communicate with the applicant.

• Also in September 2012, the HSE and the second defendant referred the applicant to a hospital in Dublin, but obstructed the referral and falsely told the consultant concerned that the medical findings in relation to the applicant were normal. They further refused a request by the consultant to carry out a bubble study. In consequence, the consultant declined to assess or treat the applicant.

• The applicant was given a heart monitor on the instructions of the second defendant. However in November 2012 the second defendant negligently assured the applicant that a reading on the monitor was normal.

• In December 2012 the HSE and second defendant negligently failed or refused to reply to a letter from the applicant’s GP raising concerns about his care and asking for advice regarding his medication.

• In February 2013 the HSE “unconditionally committed” to arrange and pay for medical treatment outside the State but failed or refused to inform the applicant or his GP. It later falsely advised the applicant’s local TD that the applicant had declined the referral.

• The HSE was advised by four named medical doctors on five occasions that the applicant should be referred for specialist treatment.

• The HSE has refused to clarify whether the treatment the applicant needs is available within the State and has negligently and in breach of statutory duty failed or refused to refer the applicant to a specialist in adult congenital heart disease.

• undertook at a consultation in July 2012 to provide normal ethical medical care when he had no intention of doing so; and

• at the same consultation, deliberately concealed the presence of pulmonary hypertension and heart failure.

• in July 2012 falsely advised the applicant’s GP that the applicant was undeserving of medical attention;

• in September 2012 falsely advised the applicant’s GP that his echocardiogram was normal;

• in September 2012 falsely advised the Dublin consultant that all medical findings in relation to the applicant were normal; and

• in July 2013 falsely advised the Medical Council that all medical findings in relation to the applicant were normal.

• carried out a bubble study negligently in December 2012;

• carried out a further negligent bubble study in January 2013;

• gave negligent advice in relation to the results of the bubble study; and

• produced a report that falsely stated the reason for the test and omitted to state the result.

13. It is claimed that the third defendant committed injurious falsehood by falsely advising the hospital and the Medical Council that there was no reason to suspect a pulmonary AVM in the applicant’s lungs.

14. The applicant claims damages, to include exemplary and aggravated damages and special damages for the cost of travelling abroad for medical care, and injunctive relief directing the HSE to refer him to a specialist in adult congenital heart disease and directing the second defendant to identify the condition for which he has prescribed medication.

The Court of Appeal

15. The Court of Appeal dealt with the two appeals against the orders dismissing the proceedings as against the first three defendants by delivering judgment ex tempore after the hearing on the 8th May 2017. Irvine J. delivered the principal judgment, with the other members of the Court concurring. It is clear that, while noting the claims of deceit, fraud and injurious falsehood, the Court saw the central case made by the applicant as being the allegation that the actions of the second and third named defendants prevented the applicant from receiving the treatment necessary for his heart condition. The other claims were seen as “part and parcel” of the negligence claim.

16. A central aspect of the debate was that the applicant did not intend to call any expert evidence to support his claim. In correspondence with the defendants, and in submissions in the High Court, he had indicated that he intended to call the two defendant doctors and other witnesses as to fact with a view to having them deemed hostile. He appears to have believed that it was possible to establish his case in that manner, although in the Court of Appeal he said that he was not necessarily intending to challenge the witnesses as being hostile. He submitted that there was no absolute rule requiring him to call expert evidence, and that there were some cases in which negligence was so obvious from the facts that expert witnesses would not be necessary. However, he agreed that his case would have to be dismissed if the effect of the Supreme Court decision in Cooke v Cronin (unrep., Supreme Court, 14th July 1999) was that there was an absolute rule that a plaintiff could not maintain professional negligence proceedings without an expert report.

17. The defendants did not contend that there was an absolute rule, but argued that the facts of the case could not come within any qualified rule.

18. In holding that the High Court judge had been correct in dismissing the proceedings as bound to fail, Irvine J. noted the obligation of a judge assessing such an application to take a very conservative starting position, recognising the right of access to the courts and the undesirability of shutting out a claim before the evidence was heard. It was also necessary to recognise the right of defendants to protect their reputations and to claim, where appropriate, that a process instituted against them was unfair.

19. Irvine J. then considered the facts alleged in the case. To succeed, the applicant would have to establish negligence by reference to the test in Dunne v. National Maternity Hospital [1989] IR 91 and would therefore have to show that no other doctor with the same qualifications as Dr. Vaughan and Dr. David, if acting with due care, would have done what they did. He could not prove that, because he did not have, and had told the court that he would not be able to get, expert evidence to that effect. The case was therefore bound to fail.

20. Irvine J. did not consider it necessary, in the circumstances, to decide whether or not Cooke v Cronin set down an absolute rule, although she indicated that she thought there could be cases (she instanced a hypothetical amputation of the wrong limb) where the rule would need to be qualified. She observed, however, that it would be unlikely, in the vast majority of cases, that a plaintiff would satisfy the test for establishing professional negligence without an expert report.

21. Finally, it should be noted that Irvine J. did not consider it necessary to determine whether the proceedings were an abuse of process in any sense other than that they were bound to fail. She found it unnecessary to decide whether or not the manner in which the applicant proposed to deal with his claim at trial – that is, by calling the doctors and asking for them to be treated as hostile – would in itself amount to an abuse of process.

22. O’Connor J. agreed, and added that while he did not believe that there was an absolute rule requiring an independent medical expert, an expert would be required in this case to give evidence as to the bubble study.

23. Ryan P. also agreed, and stated that his understanding was that an expert report was not an absolute requirement. The point of such a report was that it indicated that there was a reasonable basis for bringing an action against a professional person.

The application for leave

24. The notices filed by the parties are available on this website.

Discussion

25. As is clear from a range of determinations made by this Court since the 33rd Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

26. It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.

Decision

27. The claims made by the applicant will be dealt with here in sequence.

(i) The applicant states that the Court of Appeal determined that his damages were too remote. It did not, and in fact there is no mention of any remoteness issue.

(ii) It is stated that the Court of Appeal determined that no aspect of the applicant’s case could be proved without a medical expert, and, further, that the Court determined that it would be an abuse of process for the applicant to call the defendant doctors, or other medical personnel, to give evidence.

The Court of Appeal did not determine that it would be an abuse of process to call the witnesses in question. However, it has to be pointed out here that the applicant appears to be under a fundamental misapprehension as to the circumstances in which the procedure for treating a witness as hostile may be invoked, and also as to the evidential consequences of that procedure. It is sufficient to state here that it does not, and could not, provide a means of positively establishing a plaintiff’s case.

(iii) The applicant says that he can adduce evidence by way of an audio recording to establish that the HSE is aware that he cannot obtain medical care or advice in Ireland and has to travel abroad. He says that this is relevant to the question of remoteness of damages.

(iv) The applicant says that he can give evidence that doctors lied to him, or falsified tests, or refused to communicate with him, or told others that he was undeserving of care, without the necessity for expert evidence.

Similarly, the applicant has claimed damages for injurious falsehood. Referred to in s. 42 of the Defamation Act 2009 as “malicious falsehood”, that tort requires proof that the publication of the false statement (which must be to persons other than the plaintiff) was calculated to cause and was likely to cause financial loss to the plaintiff in respect of his or her property or his or her office, profession, calling, trade or business. No such allegation has been pleaded.

(v) The applicant says that he can establish through documentary evidence (because his file was accidentally disclosed to him) that the HSE has admitted that he has a medical condition, the existence of which the doctor denied and refused to investigate. He also says that he can call the Chief Executive of a hospital to prove that it is the national centre for the treatment of a condition that the doctor told him was harmless and never treated. He says that the HSE has belatedly accepted that he has this condition but insists that he travel abroad for treatment. He claims to have been penalised and ostracised for having sued the HSE.

This evidence could, arguably, relate to the claim that the HSE was guilty of breach of statutory duty. However, assuming for the sake of the argument that a breach of the statutory obligation of the HSE to provide medical treatment would sound in damages (which in itself might be open to debate), in the circumstances of this case the applicant would have to establish that he required a particular form of treatment at a particular time. This cannot be established in the absence of appropriate expert evidence.

(vi) Finally, the applicant seeks clarification as to whether Cooke v Cronin is authority for the proposition that medical negligence cannot be proven without the support of a medical expert.

28. In the circumstances no point of law of general public importance arises, and an appeal to this Court is not necessary in the interests of justice.

And it is hereby so ordered accordingly.