Supreme Court of Ireland Decisions

Judgment Title: Devlin & anor -v- The National Maternity Hospital

Neutral Citation: [2007] IESC 50

Supreme Court Record Number: 346/2004 & 352/2004

High Court Record Number: 2002 No 10299p

Date of Delivery: 14 November 2007

Court: Supreme Court

(i) Erred in law in his application of the principles set out in Kelly v. Hennessy [1995] 3 IR 253, as recited in Fletcher v. The Commissioner of Public Works, [2003] 2 ILRM 94 in holding that in order to recover compensation the plaintiffs had to suffer a physical or apprehension of a physical injury. Further and/or alternatively he erred in law in applying the principle of Kelly v. Hennessy in this case.

(ii) Erred in law in holding that in order to recover damages for nervous shock and/or a psychiatric injury the plaintiffs had to have suffered and sustained a physical or apprehension of a physical injury.

(iii) Erred in law and in fact, in light of the plaintiffs' then state of knowledge, in finding that the plaintiffs' claim against the hospital for the unauthorised carrying out of a port-mortem and the complaints and injuries arising therefrom was statute barred.

(iv) Erred in fact and in law in not distinguishing between having knowledge a post-mortem had taken place and not knowing the infant's organs had been removed and retained.

(v) Erred in law and in fact in acceding to the hospital's application for a direction.

(i) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in not imputing to the plaintiffs and each of them by virtue of the operation of the provisions of s. 2 (2) of the Statute of Limitations (Amendment) Act, 1991 the knowledge that the plaintiffs expert, Dr. Barson, Consultant Pathologist, had, that organs and tissue had been retained when the expert furnished his report, dated the 23rd day of August, 1991 (and supporting documentation) to the plaintiffs solicitors which clearly demonstrated and/or indicated that organs and tissue had been removed and retained from the plaintiffs' stillborn infant, Laura.

(ii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in finding that for the purposes of the operation of the Statute of Limitations Acts, 1957 - 1991 that time only commenced to run against the plaintiffs' on receipt of the letter from the hospital dated 24th March, 2000.

(iii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in failing to hold that the plaintiffs did not establish any personal injury loss and damage arising out of the alleged negligence and breach of duty on the part of the hospital where the first named plaintiff gave evidence to the effect that even if consent had been obtained for the post-mortem the letter dated 24th March, 2000, could have caused same and/or similar personal injury, loss and damage as was allegedly caused by the alleged lack of consent.

"… for the purpose of this application I must assume, as I do, firstly that the plaintiffs did not give their consent to a post-mortem examination being carried out on their deceased daughter; secondly, that the plaintiffs did not know that in the course of that post-mortem examination organs would be removed from the deceased and retained by the defendants; thirdly, that the plaintiffs did not actually learn of the fact that the organs had been retained until they received a letter on that behalf dated 24th March, 2000, from Dr. Declan Keane, then Master of the defendant's hospital; and fourthly, that on learning that the organs of her deceased daughter had been retained by the defendants the first named plaintiff, Bridget Devlin, suffered shock and post-traumatic stress."

"Not only was there no medical evidence to suggest that Mr Devlin suffered an injury as a result of the matters complained of but he himself in the course of his evidence did not say one word which suggested that he personally had suffered an injury. He had a lot to say about how his wife had suffered but nothing about himself. In this regard, I reject the suggestion by Mr McCartan Senior Counsel on his behalf that I should infer from the evidence which I heard that Mr Devlin had suffered distress, as Mr McCartan suggested that Peart J. had approved of in the course of an unreported judgment which he delivered on 11 March of this year in the case of Philip -v- Ryan and the Bon Secours Hospital.

In my view, I cannot manufacture evidence which is not there. Accordingly, I am satisfied that Mr Devlin has not proved any injury or loss as a result of the matters of which he complains; therefore, even if he were to succeed on the liability issue it would be a case of damnum absque injuria. Accordingly, I will accede to Mr Meenan's application to non-suit Mr Devlin."

"Insofar as the [hospital] carried out the post-mortem examination without the consent of the plaintiffs, which for the purpose of this application I must accept to be a fact, both of the plaintiffs conceded in evidence that they were aware that a post-mortem had been carried out by the [hospital] within a very short time of the event and both expressed shock and anger at learning of that fact. Yet, although the plaintiffs instructed their solicitor with regard to other matters relating to the death of their stillborn child, no complaint was made on their behalf with regard to the alleged unauthorised autopsy carried out by the [hospital] and no proceedings on that behalf were taken by the plaintiffs until the proceedings herein were instituted on 26th July in the year 2002.

However, in the circumstance that there was evidence on behalf of the plaintiff, evidence which for the purpose of this application I must accept as the truth, that a nurse in Holles Street Hospital told Mr. Devlin that, in the case of a stillbirth, it was the standard practice of the hospital to carry out a post-mortem examination, although admittedly that was said after the post-mortem examination on Laura Devlin had taken place. It was submitted by Mr. McCartan on behalf of the plaintiffs that Mr. Devlin was thereby induced into believing that he would have had no choice as to whether or not a post-mortem examination should be carried out and, therefore, the plaintiffs did not know that they had been wronged insofar as the carrying out of the post-mortem was concerned until these proceedings commenced.

Accordingly, it was submitted that the complaint with regard to the alleged unauthorised post-mortem was not statute barred. I cannot accept that. If it is a fact, which I accept for the purpose of this application that it is, that a post-mortem examination was carried out without the plaintiffs' consent there is no doubt but that they were aware of the fact shortly afterwards and equally there is no doubt that they knew that they had been wronged because they were angry. I have no doubt but that they told their solicitor all about what had happened.
Accordingly, I am not persuaded that there was any justification for the failure to institute proceedings in that behalf within the appropriate statutory time limit. I do not accept that what the nurse said to Mr. Devlin with regard to the standard practice of carrying out a post-mortem on a stillborn could or did have the effect of preventing the statute from running against the plaintiffs.

It follows, in my view, that all complaints by the plaintiffs arising out of the failure of the [hospital] to obtain their consent to a post-mortem examination are indeed statute barred."

"For the purpose of this Section a person's knowledge includes knowledge which he might reasonably have expected to acquire from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."

"In that regard, Dr. Tony Barson, a consultant pathologist who gave evidence on behalf of the plaintiff, said that in the month of August, 1991 he had seen the autopsy report of 31st May 1988, on the late Laura Devlin which had been prepared by Dr. Kelehan; a report with regard to that post-mortem which he, Dr. Kelehan, had carried out. It was clear from that report that, in the course of that post-mortem examination, organs had been taken from the deceased.

In that regard, while Dr. Barson appeared to say that he conveyed that fact to the plaintiffs' then solicitor Mr. Lambe, it transpired that he thought that it was evident from the autopsy report that that is what had happened. That is, that the organs had been removed. The fact of the matter was that, in his report to the plaintiffs' solicitor, he never mentioned that organs had been removed in the course of the post-mortem examination. He himself did not address the subject because it was not something to which he had been asked to address.

Accordingly, while Dr. Barson himself may well have known that organs had been retained, as he appears to have kept this knowledge to himself because at the time he did not think it relevant, I do not think that that knowledge can be imputed to the plaintiffs by virtue of the provisions of Section 2(2)(b) of the 1991 Act because I do not think that, at that time, it would have been reasonable for the plaintiffs to have sought advice from Dr. Barson in that regard.
With regard to Mr. Meenan's submission that, had the plaintiffs pursued a claim against the [hospital] for carrying out the post-mortem examination, as they allege, without their consent, they would inevitably have discovered that organs had been retained by the [hospital] and therefore as the claim with regard to carrying out the post-mortem without consent is statute barred so also is the claim with regard to the retention of the organs. I do not think that that follows. I would agree that, had the plaintiffs pursued a claim with regard to carrying out the post-mortem examination without consent in 1988, it is probable that they would have then learned about the retention of organs, but they were under no obligation to pursue such a claim at that time and I do not accept that, because they failed to pursue such a claim and allowed it to become statute barred, as I believe it is, thereby depriving themselves of the opportunity to find out that the organs had been retained, that by the same default they also allowed the claim in respect of the retention of organs to become statute barred.

Accordingly, I reject the submission that the plaintiffs' claims in respect of the retention of organs are statute barred."

"With regard to the submission that the plaintiff had not identified a recoverable loss is concerned; as I understand the submission, because there was uncontradicted evidence from Dr. Barson and also from Dr. Henry that, in the 1980s, it was an accepted practice that where there was consent to the carrying out of a post-mortem it was implicit that the pathologist had permission to remove and retain organs; it follows that, had the plaintiffs' consent to the post-mortem in this case been obtained, the position of Mr. and Ms. Devlin would be no different than it actually was. That is, that they would have learnt in the year 2000 that their baby's organs had been retained with all the consequences that that knowledge involved.

Accordingly, it was submitted by Mr. Meenan that as there would have been no duty on the defendants in 1988 to advise the plaintiffs that organs would be removed in the course of a post-mortem to which they had consented, the fact that they did not consent to that post-mortem, which at present I am obliged to accept, made no difference whatsoever, because with or without consent to the post-mortem they would not have learnt until the year 2000 that organs had been retained. Even if there had been consent to the post-mortem, the defendants were under no duty to advise the plaintiffs that organs would be retained at the post-mortem.

In the absence of such a duty there could be no negligence on the part of the defendants which gave rise to a liability in damages.

However, whatever may have been the practice where consent to a post-mortem was given in the 1980s, I heard no evidence to suggest that there was any practice when a post-mortem was carried out without the consent of the next of kin. On the other hand, it was agreed that consent of the parties to the post-mortem of a stillborn should be obtained before the post-mortem is carried out. I am obliged to accept for the purpose of this application that this consent had not been forthcoming.

Therefore, I must conclude that the [hospital] was not entitled to carry out the post-mortem and it follows, as night follows day, that if they were not so entitled that they were equally not entitled to remove and retain organs. In this regard, the fact that the plaintiffs' claim against the [hospital] arising from them performing the post-mortem without consent is statute barred does not, in my view, alter the fact that the defendants without consent had no right to carry out the post-mortem examination and to remove and retain organs.

In the absence of such a right, it seems to me that the [hospital] owed to the plaintiffs a duty not to interfere with the remains of the deceased. In my view, it is reasonably foreseeable that, had they done so, as they did, it was probable that the plaintiffs would suffer distress on that account.

Accordingly, if it is a fact that the [hospital] carried out a post-mortem examination on the deceased without the consent of the plaintiffs, I do not accept that the plaintiffs have not established a cause of action."

"'Nervous shock' is a legal term used to connote a mental as opposed to physical injury to a person. It has been accepted in Irish law that such an injury can be the subject of damages."

(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock induced;
(c) that the nervous shock was caused by the defendant's act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.

"… it seems to me that the fourth condition laid down by Hamilton C.J. has not been satisfied in this case."

"… as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be 'a consequence which, in the ordinary course of things would flow from the' negligence unless such injury 'accompany such negligence in point of time'."

"The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –v- Hennessy: [1995] 3 I.R. 263 …:

1. The plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for ‘nervous shock’.
2. A plaintiff must establish that his or her reasonable psychiatric illness was ‘shock induced’ ...
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission …
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff …
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.”

"The central issue in this case, accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of 'nervous shock' cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness which was the consequence of his having been negligently exposed to the risk of contracting mesothelioma. That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence: the reasons for that cautious approach are considered at a later point in this judgment."

"'Shock', in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."