gile3160

Citation no. (2000) 2062	Ref:	GILE3160

Judgment: approved by the Court for handing down	Delivered:	03/03/00
(subject to editorial corrections)

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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BETWEEN:

MARION ELIZABETH COOKE

Plaintiff

and

WESTERN HEALTH AND SOCIAL SERVICES BOARD

Defendant

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GILLEN J

This is an appeal from an order made by Master Redpath on 10 February 2000, that the issue of limitation in this action be tried as a preliminary issue.

The plaintiff in this action was born on 12 January 1963. She was admitted on 2 October 1991 to Altnagelvin Area Hospital, Londonderry for a gallstone operation. She was subsequently discharged from the hospital having undergone operative treatment on 18 October 1991. Later on the same day, 18 October 1991, it is alleged that she was re-admitted to hospital and a laparotomy performed on 19 October 1991. She was subsequently discharged on 30 October 1991 and re-admitted on 11 November 1991 for further operative treatment. She was eventually discharged home on 19 November 1991.

The plaintiff alleges that during the course of her treatment there was a failure to diagnose and properly treat her complaints thereby occasioning personal injuries, loss and damage as set out in the statement of claim due to the negligence and breach of contract of the defendant, its servants and agents.

Thereafter the sequence of events included the following steps:

(1) A letter of claim was served on 8 September 1982.

(2) By order dated 14 January 1993 the plaintiff obtained an order under Order 24 Rule 8(1) for pre-proceedings discovery of all the hospital notes and records relating to admission to Altnagelvin Area Hospital, Londonderry on 2 October 1991 for the removal of gallstones.

(3) By letter dated 5 April 1993 all the plaintiff's hospital notes and records relating to the treatment were furnished to the plaintiff's solicitors as set out in the affidavit of Eileen Finnegan, Solicitor, on behalf of the defendant dated 18 January 2000 (hereinafter called "the defendant's affidavit").

In an affidavit of Brendan Kearney, Solicitor, on behalf of the plaintiff dated 7 February 2000 (hereinafter called "the plaintiff's affidavit"), it is asserted that not all of the medical records were disclosed on 5 April 1993. Paragraphs 7 and 8 of the plaintiff's affidavit go on to assert:

"7.The Legal Aid Department granted the legal aid certificate in respect of obtaining a medical report from a professor of surgery who is based in England in November 1994. The medical records referred to in paragraph 6 were posted to us by the professor of surgery on 18 May 1995. We posted letters by way of reminder to him on the following dates: 26 September 1995, 27 November 1995, 17 January 1996, 26 February 1996, 23 April 1996, 18 July 1996, 24 July 1996, 26 September 1996, 8 January 1997, 19 June 1997, 8 September 1997, 11 November 1997.

8.After we obtained the awaited report circa 29 December 1997 from the aforesaid surgery professor, we became aware that the medical records which the defendant had made by way of compliance with Master Care's order to us on 5 April 1993 were not exhaustive due to important records being missing."

The following pleadings then ensued;

(a) Writ of Summons issued on 8 May 1998;

(b) Memorandum of Appearance dated 2 June 1998;

(d) Defence dated 1 December 1998;

(e) Notice of Further and Better Particulars dated 1 December 1998;

(f) Plaintiff's replies thereto dated 15 April 1999;

(g) Plaintiff's reply dated 15 April 1999.

In the defence, the defence alleges that the plaintiff's cause of action, if any, is barred by the elapse of time and by the provisions of the Limitation (Northern Ireland) Order 1989. The plaintiff's reply dated 15 April 1999 does not join issue on the limitation point. By consent, I have granted leave to the plaintiff to amend the reply which deletes paragraph 2 and now reads in paragraphs 3, 4 and 5:

"3.The intricate and specialised information requisite to establish that the defendant its servants and agents had been negligent and in breach of statutory duty did not become known to the plaintiff until on or about 29 December 1997.

4.As the Director of Legal Services of the Central Services Agency was aware on 20 October 1992 that the plaintiff's medical records were being used by the medical staff, presumably at Altnagelvin Hospital concerned to facilitate the preparation of statements and as the person who performed surgical operations in 1991 on the plaintiff is still in the employment of the defendant the evidence adduced or likely to be adduced by the plaintiff and the defendant is not likely to be less cogent than if a writ of summons had been issued within 3 years from the end of treatment.

5.The plaintiff will rely upon the provisions of section 9(D) of the Statute of Limitations (Northern Ireland) 1958 as amended."

On 31 August 1999, the defendant's solicitors wrote to the solicitors on record for the plaintiff asking them to set out in writing the reasons why the action had not been brought within the 3 year limitation period. The plaintiff's solicitor replied by letter dated 19 October 1999 stating, inter alia;

"We are satisfied that the plaintiff could and should not have issued proceedings in this case until we received our medical report from our medical adviser whom legal aid gave us permission to obtain a report from. The said report is dated 4 December 1997, therefore there is no undue delay. Do you wish our medical adviser to confirm this?"

By letter dated 21 December 1999 the defendant's solicitors wrote to the solicitors on record for the plaintiff requesting that they consent to the granting of orders in the terms of the summons that came before Master Redpath. No consent was forthcoming from the plaintiff's solicitors. The defendant's solicitors thereafter brought an application dated 18 January 2000 under RSC (Northern Ireland) Order 33 Rule 3 and the Master has made an order in their favour.

Principles governing such applications

The Supreme Court Practice at Order 33/4/6 1999, when dealing with the trial of preliminary issues under the Limitation Act 1980, records:

"The practice has become fairly settled that this question should be dealt with at the pre-trial stage of the action, when the court can properly be placed in the position `having regard to all the circumstances of the case either on the hearing of a separate summons seeking an order of the court to make or refuse such a direction or in the hearing of an allied or parallel summons'."

It goes on to state:

"Nevertheless, great care and discretion should be exercised before ordering the trial of a preliminary issue as to whether the court should or should not exercise its power to override the time limits under the Limitation Act 1980, particularly so as to avoid the duplication of such a trial and the trial of the action itself, with a consequent increase in cost, delay and effort. It may well happen that what appears as attractive as a trial of such a preliminary issue will not differ much from the plenary trial itself, especially as the court has to have regard `to all the circumstances of the case'."

In Rodgers v Gallagher Limited 1982 NILR pg 316 this issue arose. At page 320 Lowry LCJ said:

"One point in favour of treating the point as a preliminary issue is, as Mr Gibson contended, the fact that a decision against the plaintiff will, subject to the right of appeal, finally determine a case. This must always be a relevant consideration unless the chance of a final determination is negligible."

Another point is that prima facie the action is barred by Section 9(a) and that it is up to the plaintiff to get the action on its feet by obtaining a decision in his favour under Section 9(d).

The question, although it may involve considering evidence which would also be relevant at the trial, is a different question for many of those which would be an issue at the trial. Is the plaintiff to have a trial of his claim? It will normally be better that a judge is free to consider that question independently of a trial whether the trial is by judge alone or (more usually) with a jury.

Medical evidence may be needed at the trial of the question under Section 9(d) but normally, as appears likely in this case, it will be shorter and simpler than the medical evidence required at a trial where one of the issues is the amount of damages. The entire question of damages (although not the question of the gravity of the case) will be omitted from a trial about preliminary issue."

Lord Lowry LCJ went on to say at page 321:

"The master, and the judge if there is an appeal, must be alert to pick out the case (I think one could safely say, the exceptional case) in which it will only be an undesirable duplication of effort and evidence to order the trial of a preliminary issue under Section 9(d)."

In Miller (a minor) by David Millar his father and next friend v Peoples and Chada and North Eastern Education and Library Board (unreported 23 October 1995) the Court of Appeal in Northern Ireland dealt with the question of trying the issue of liability separately from that of damages. At page 5 Carswell LJ, as he then was, said:

"It is our own experience that split trials have been ordered or agreed between the parties with relative frequency in recent trials and if the power is used properly it is an effective means of saving unnecessary expense and hearing time. ... Since jury trials became ... personal injury cases, the reasons for keeping an action together in a unitary hearing have been reduced. The court should in our view take a broad and realistic view of what is just and convenient, which should include the avoidance of unnecessary expense and the need to make effective use of court time. It should in a suitable case be ready to make an order for a split trial. In weighing up what is just and convenient the court should balance the advantages or disadvantages to each party and take into account the public interest that unnecessary expenditure of time and money in a lengthy hearing should not be incurred."

Although this case dealt with a different issue than that presently before the court, nonetheless the general principles therein stated also obtain in this instance.

I have concluded that this is one of the exceptional cases adverted to by Lowry LCJ in Rodgers v Gallagher Limited (supra) and that a preliminary hearing in this matter would occasion an unnecessary increase in cost, delay and effort. I am of this opinion for the following reasons:

(1) Both counsel have indicated that medical evidence is likely to be called in the determination of this preliminary issue and therefore the issue could not be determined on affidavits alone. The plaintiff's primary medical witness is from England and he will be required to attend at the preliminary issue as well as the substantive trial if that proceeds. The consultant who carried out the operation is, according to Mr McAlinden, also likely to be called at the preliminary issue. Accordingly, at least in the instance of the plaintiff's witness, there will be a duplication of expense and time in bringing to court a consultant from England on two separate occasions with the attendant doubling up of travel and accommodation expense. Mr Cahill QC, who appeared on behalf of the plaintiff, made the realistic point that it is difficult enough from time to time to arrange for or persuade busy consultants outside this jurisdiction to attend court in Northern Ireland and the burden of arranging two separate visits by the consultant with the extra cost involved in question is a material factor. This may also occasion delay in arranging two separate dates for attendance.

2. It is clear from what counsel has said to me that the question of possible prejudice which would be relevant to a judge exercising his discretion under Section 9(d) of the Statute in this instance may well involve an extensive trawl through the notes and records of the defendant in order to establish the absence or presence of any prejudice occasioned to the defendants or their witnesses by the passage of time. It seems to me that this will inevitably involve a duplication of time and effort because such an exercise could be carried out coincidentally with the issues of liability and even quantum at the same time and at the one hearing. Requiring perhaps both consultants to remain in court whilst this lengthy exercise is performed may also lend itself to an unnecessary duplication of effort, costs and time.

3. Counsel have indicated to me that the question of prejudice may also involve discussion of the state of knowledge of medical practitioners at 1991 when the operation was performed and again in later years. This is also precisely the issue that will be raised at the trial itself on the question of liability and on each occasion may require lengthy analysis which will be a duplication on the second occasion.

4. There is no doubt that, as counsel for the defendant Mr McAlinden has argued, there are certain issues that could be raised at the preliminary hearing completely independent of the hearing itself. He instances the entire question of quantum and the short simple issue of why the plaintiff's doctor took so long to respond to the request for a report from the plaintiff's solicitor. On the other hand Mr Cahill indicates to me that quantum is not going to be a lengthy issue in this case with one surgeon having been retained by the plaintiff in this regard and the evidence being anticipated to be relatively short.

I conclude therefore that this is an exceptional case where a preliminary issue will result in an undesirable duplication of effort, cost and delay. I therefore reverse the decision of the Master with costs to the plaintiff.

Judgment: approved by the Court for handing down