Supreme Court dismisses appeal where deceased plaintiff's claim for pain and suffering is barred by statute.

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

1. The primary issue which the Court has to address on this appeal at this juncture arises from the unfortunate circumstance that the

appellant died at a time when her appeal had been part heard by the Court. In consequence, the Court must now determine the

status of the appeal and, in particular, whether the Court has any jurisdiction to adjudicate on the appeal having regard to the nature

of the appellant’s cause of action and her claim against the respondent. In reaching a determination on the issue it will be necessary

to consider in some detail the nature of the appellant’s cause of action and her claim as pleaded, the conduct of the proceedings and

their outcome in the High Court and what occurred on the hearing of the appeal, before considering the relevant law and its

application to the facts.

The proceedings in the High Court

2. The proceedings in the High Court were initiated by a personal injuries summons which issued on 21st June, 2011. The indorsement

of claim, which described the appellant as “a retired lady” who was born on 11th July, 1931, disclosed that the respondent was being

sued as “the agreed nominated defendant of the Royal Victoria Eye and Ear Hospital” (the Hospital) in Dublin. The factual basis of the

appellant’s claim for personal injuries against the Hospital, as outlined in the indorsement of claim on the summons, was that she

entered the Hospital as a patient on 27th January, 2010 and underwent surgery to remove a cataract from her left eye under general

anaesthetic on the same day on the advice of the Hospital’s servants or agents. The consequences of the surgery are outlined in the

judgment of the High Court (de Valera J.) delivered on 20th December, 2013 as follows:

“Unfortunately, the plaintiff’s surgery was not a success. An uncontrolled pseudomonas infection developed which

necessitated surgical evisceration of the plaintiff’s left eye on 3rd February, 2010 in order to avoid causing permanent

damage to her right eye. The plaintiff was subsequently fitted with a prosthesis. This had devastating consequences for

the plaintiff and [her son, Edward Doyle] gave evidence of the considerable impact it had on her daily life. He told the

Court that since surgery his mother is often very depressed . . . Complications also arose which led to the plaintiff having

to undergo a dermisfat graft in April 2010 under general anaesthetic and another procedure was required in 2012 after the

plaintiff’s eye socket began to bleed.”

3. In the indorsement of claim on the summons and in a notice of further particulars furnished on behalf of the appellant the

allegations of negligence and breach of duty against the respondent were particularised comprehensively. In essence, the appellant’s

case was that the respondent failed in its duty to obtain informed consent from her to the surgical procedure and to the

administration of a general anaesthetic to her. The case advanced on behalf of the appellant was that she underwent the surgery

under general anaesthetic without any discussion of the prospects of the success of the surgery, on the basis of which it was

contended that she would not have undergone the surgery in the knowledge of the risks associated with it.

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:

“The [appellant] has a medical card. No claim is made in respect of medical expenses to date.”

No claim for special damage was subsequently made on behalf of the appellant and no evidence of special damage was adduced at

the hearing in the High Court.

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):

“Counsel for both parties made extensive submissions to the Court in relation to the duty owed by a medical practitioner

to obtain informed consent. I accept that the minimum requirements for disclosure of information to patients in elective

surgery is that set out by the Supreme Court in Walsh v. Family Planning Services [1992] 1 I.R. 496 and I am satisfied

that this threshold has been met in this case. Having made this finding it is not necessary for me to carry out any

objective or subjective assessment as to whether or not the plaintiff would have proceeded with the surgery had she

been informed of the risks as Kearns J. (as he then was) did in Geoghegan v. Harris [2003] 3 I.R. 536. However, for the

sake of completeness, I am satisfied that, on the balance of probabilities the plaintiff would have gone ahead with the

surgery.”

On the basis that no liability could be attributed to the respondent and that no negligence had been established, the trial judge

dismissed the appellant’s claim. That decision is reflected in the order of the High Court dated 20th December, 2013, which was

perfected on 24th January, 2014, in which it was ordered that the plaintiff’s claim be dismissed and costs were awarded in favour of

the respondent against the plaintiff.

The appeal

8. In the appellant’s notice of appeal which was filed on 31st January, 2014, the appellant sought to set aside the judgment and order

of the High Court made on 20th December, 2013 and further sought that, in lieu thereof, this Court should –

(a) order a new trial on all issues in the High Court, or

(b) enter judgment for the appellant and assess the damages to which the appellant was entitled.

The appellant also sought such further relief as to this Court should seem fit, including the costs of the proceedings in the High Court

and the costs of the appeal. The grounds of appeal were set out comprehensively in the notice of appeal.

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

13. The survival of causes of action on death is now governed by s. 7, which is in Part II of the Civil Liability Act 1961 (the Act of

1961). Sub-sections (1) and (2) of s. 7, which are relevant for present purposes, provide as follows:

“(1) On the death of a person on or after the date of the 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.”

The expression “excepted causes of action”, which appears in subs. (1), is defined in s. 6 of the Act of 1961, which has been

amended most recently by the Defamation Act 2009. The appellant’s cause of action does not come within that definition which, in

reality, now only captures an action for seduction. Section 48 of the Succession Act 1965 provides that the personal representatives

of a deceased person may sue, and be sued, in respect of all causes of action the benefit of which survive for, or against, the estate

of the deceased person. Hence the approach adopted by the Court on 31st July, 2014, as explained earlier in paragraph 10.

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:

“The general result of the application of the common law maxim . . . was that a personal representative could not sue or

be sued for a wrong committed against or by the deceased for which unliquidated damages only would be recoverable . .

.. The principle was applicable both at law and in equity . . ..”

17. Counsel for the appellant suggested that the effect of the maxim was that a cause of action for tort, which was not prosecuted

to judgment before the death of the plaintiff, abated with the death of the plaintiff, with emphasis on the words “not prosecuted to

judgment”. Counsel did not explain what was meant by “not prosecuted to judgment” in that context nor did he cite any relevant

authority. While not directly applicable to the situation the Court is considering here, there is authority for the proposition that in

cases where the maxim applied, proceedings could not be pursued against the personal representative even though the death of the

wrongdoer did not take place until after a judgment or order directing an inquiry as to damages. The authority is the decision of the

Court of Appeal in Davoren v. Wootton [1900] 1 I.R. 273. In the context of another submission made by counsel for the appellant, it

is interesting to note that, following authority by which they were bound, the Lord Justices of the Court of Appeal decided the issue

in Davoren v. Wootton on the basis that the judgment at first instance was wanting in completeness because the inquiry as to

damages had not taken place before the death of the defendant. As it was put by FitzGibbon L.J. (at p. 282):

“The action had not yet resulted in a final judgment for an ascertained debt.”

18. The submission of counsel for the appellant which prompted the observations in the next preceding paragraph was to the effect

that no question of abatement of a cause of action for tort on death arises in the present case because the cause of action was

prosecuted to judgment before the death of the plaintiff. It was submitted that once the cause of action was prosecuted to

judgment, it merged in the judgment and was extinguished. Counsel referred to that proposition as the doctrine of merger of a cause

of action on the judgment, which it was submitted is the foundation of the rule that a plaintiff can sue only once in respect of a

cause of action since it has merged and become extinguished in the judgment.

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:

“According to this theory, when a judgment as to the existence or non-existence of a cause of action is given, the cause

of action is extinguished by that decision such that ‘the very right or cause of action claimed . . . has in the formal

proceedings passed into judgment, so that it is merged and is no longer an independent existence’. One consequence of

the theory of merger is that where proceedings are brought in respect of a cause of action, the plaintiff must make all

claims open to him and the defendant must raise all defences available to him before the judgment operates as a

comprehensive declaration of all the rights and duties of the parties arising out of the cause of action. Fragmentation of

litigation is thereby prevented because parties and their privies will not be allowed to re-open a case at a later date by

making claims which could have been made during the earlier proceedings. This principle is encompassed within the rule in

Henderson v. Henderson . . ..”

20. The manner in which counsel for the appellant sought to extend the theory of merger to the situation which has arisen in this

case was as follows. It was submitted that the appellant’s cause of action merged in the judgment of the High Court and what is

before this Court is that judgment and not the original cause of action. Further, it was submitted that, on appeal, the system of

judicature is concerned with correcting a judgment, if error is found. The cause of action has been extinguished in the judgment and

to say that it remains is, it was submitted, to attempt an annulment of the judgment which intervened and led to the extinguishment

of the cause of action.

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

26. As has been stated at the outset, the order of the High Court included an order awarding the respondent its costs of the

proceedings against the appellant. The issue of costs at first instance and on the appeal was not adequately addressed by the

parties at the hearing on 31st July, 2014. Accordingly, the matter will be re-listed to deal with the issue of costs.