Supreme Court: Woman’s medical negligence claim did not survive her death

A five-judge Supreme Court has unanimously ruled that a claim for damages for alleged medical negligence brought by a woman against a Dublin hospital did not survive her death, as per section 7(2) of the Civil Liability Act 1961.


In January 2010, Mrs Bridget Doyle underwent surgery at the Royal Victoria Eye and Ear Hospital to remove a cataract from her left eye - the surgery was not a success, and post-operative complications necessitated removal of that eye in February 2010, in order to prevent damage to her right eye. Further complications arose, requiring further interventions later in 2010 and in 2012.

Mrs Doyle passed away after an unsuccessful High Court hearing, but before the conclusion of the hearing of her appeal before the Supreme Court. It was asserted that, notwithstanding the provisions of the Civil Liability Act 1961, by virtue of the relevant common law rules – Alford v. Begg (1848) 12 Ir LR. 528 and Davoren v. Wootton 1 IR 273 – Mrs Doyle’s cause of action survived for the benefit of the estate.

It was also argued that the proceedings include a claim for pecuniary loss in respect of care provided to Mrs Doyle by her son, Mr Edward Doyle, and that this claim survived her death.

The High Court

The proceedings alleging negligence and breach of duty were initiated in June 2011, and it was alleged 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

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 Mrs Doyle and with her son, and acknowledged the considerable impact on her life, he held that no liability could be attributed to the hospital and dismissed the claim.

The Supreme Court

The notice of appeal was lodged in January 2014, asking the Supreme 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 Mrs Doyle and assess the damages. Before the case could be heard, Mrs Doyle passed away on the 11th July 2014.

The case made on behalf of Mrs Doyle was that:

  1. The legislature did not intend, or did not succeed in, sweeping away the rule represented by the maxim actio personalis moritur cum persona (a personal action dies with the person), and that some aspect of the exception to that rule survives;
  2. If necessary that exception should, as a matter of constitutional fairness, be extended to cover personal injury actions.
  3. Delivering the judgment of the Supreme Court, Ms Justice Iseult O’Malley said that she found it “impossible to accept the contention that vestiges of the common law rule on abatement in tort actions… 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”.

    Further, the argument that the action would have survived in any event because of the fact that there had been a final order in the High Court, was based on a misunderstanding of Alford v. Begg. According to Justice O’Malley, the point in Alford v. Begg “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”.

    By contrast, and in Mrs Doyle’s case, Justice O’Malley stated that “where 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”.

    “The intention of the Oireachtas is clear – 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… and the beneficiaries of the estate cannot complain that they have been unfairly denied compensation for the suffering of another individual”.

    Justice O’Malley indicated that the potential claim in respect of the care services provided by Mr Edward Doyle was never properly constituted; the letter of updated particulars was not sufficient, and the matter was never specifically referred to in the High Court.

    Consequently, the Court ruled that Mrs Doyle’s action for damages for alleged medical negligence could not survive her death, and the claim was dismissed.

    • by Seosamh Gráinséir for Irish Legal News
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