September-08-2016 in Healthcare Law
On 28 June 2016, in Joseph Hewitt as Legal Representative of the estate of Dolores Hewitt (Deceased) – v HSE (2016) IECA 194, the HSE won its appeal against the decision of the High Court in June 2014. The High Court held that the fatal injuries claim taken by Mr Joseph Hewitt pursuant to Section 48 of the Civil Liability Act 1961 arising out of the death of his wife was not statute-barred as it had been taken within two years of the date of the deceased’s death.
When the matter had come before the High Court originally, the Court was told that the deceased had a history of breast cancer in 2001 from which she made a full recovery. For monitoring purposes she had attended for radiological review in February 2007 where an ultrasound disclosed two lesions in her liver. There had been a delay of five months by the hospital in acting upon the abnormal ultrasound results and the deceased sadly died in June 2010. No action for personal injuries had been commenced by the deceased prior to her death.
The parties agreed in the High Court that the deceased had sufficient "knowledge" to commence proceedings in July 2007 so that the two year statutory limitation period had expired in July 2009. Mr Hewitt had issued proceedings on 25 January 2012 pursuant to Section 7 of the Act and proceedings on behalf of himself and the other statutory dependants of the deceased for wrongful death pursuant to Section 48 of the Act.
No appeal was taken against the finding of the High Court that the claim under Section 7 of the Act was already statute-barred at the date of death of the deceased. Section 7 allows a personal representative to continue an action already commenced by the deceased, or commence an action vested in the deceased at the date of death.
The Court of Appeal had to consider whether Mr Hewitt’s fatal claim under Section 48 of the Act could be maintained in circumstances where any claim which the deceased might have brought immediately prior to her death would have been statute-barred.
The HSE contended that as the deceased’s action for negligence had been statute-barred, it must follow that the action taken by Mr Hewitt was also statute-barred. Mr Hewitt contended that the claim under Section 48 must be regarded as a stand-alone claim and that once proceedings had been taken within two years from the date of the deceased’s death, then they could not be regarded as statute-barred.
The Court of Appeal interpreted the wording of Section 48 to mean that proof was required that the deceased would have succeeded in the action but for her death. The Court examined whether the deceased could have maintained an action for negligence and recovered damages at the date of her death and concluded that the deceased could not have done so as the action would have been statute-barred. As the underlying action which the deceased might have taken was itself statute-barred, the personal representative of the deceased could not maintain the Section 48 proceedings, even if those proceedings had been taken within time. The Court of Appeal added that any other conclusion could have "startling implications" in that a cause of action which was statute-barred during the lifetime of the deceased could, in effect, be revived after death if a personal representative or family member were allowed to maintain a claim under Section 48 within two years of death/date of knowledge.
This Court of Appeal decision provides welcome clarification on the Statute of Limitations in respect of Section 48 proceedings.
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