Court of Appeal: HSE fails in bid to dismiss injuries claim arising from plaintiff’s birth 44 years ago

new born baby - the time when a birth injury can occur or shortly after when a birth injury could happen

3 November 2021

The Court of Appeal has rejected an appeal by the Health Service Executive (HSE) to dismiss a plaintiff’s claim for personal injuries arising from the circumstances of her birth.

The HSE sought to strike out the proceedings which issued 41 years after the birth of the plaintiff, arguing that it was unfair and unjust for the HSE to defend such a claim.

However, the Court of Appeal held that the HSE had failed to establish that there was a real and substantial risk of an unfair trial. The court considered that the HSE’s complaints of missing records and unavailable witnesses did not meet the threshold set in O’Domhnaill v. Merrick [1984] I.R. 151.


The plaintiff was born in May 1977. The plaintiff’s mother had initially presented herself at St. Brigid’s Hospital, which was a small district hospital with three maternity beds and no resident doctor. The mother was said to have notified a nurse (Nurse Anthony) of a bleed as she was admitted. Further, it was claimed that a Nurse Cox came on duty overnight and attended to the mother’s bleeding.

Eventually, the mother was transferred to Clonmel following a phone call between Nurse Cox and the doctor in charge. During the 30-minute ambulance ride to the hospital, the plaintiff was born.

The mother was kept in St. Joseph’s Hospital, Clonmel for a period and then transferred to Ardkeen Hospital, Waterford. The mother and plaintiff were later discharged 20 days after she presented to St. Brigid’s.

The plaintiff was born with brain damage and was intellectually disabled. In a personal injuries summons which issued in 2018, the plaintiff claimed to have suffered from chronic partial asphyxia which was initiated by her mother’s ante partum haemorrhage and which continued until her delivery. She sought damages for negligence arising from the manner of her birth.

The HSE delivered a defence in October 2019 and the matter was listed for hearing. Following an adjournment due to Covid-19, the HSE issued a motion to dismiss the plaintiff’s claim in October 2020.

The motion was grounded on the basis that it would be unfair to require the HSE to defend the claim due to the passage of time. In particular, the HSE relied on the fact that a fire had destroyed the mother/plaintiff’s records from St. Joseph’s in 2001 and that the GP in charge had died. It was also argued that Nurse Antony was an old woman in ill health and that it was not appropriate to approach her about the case. Further, it was said that Nurse Cox had been interviewed by the parties and she had an inconsistent recollection of the incident.

The HSE framed the motion in the context of O’Domhnaill v. Merrick, stating that the pre-trial delay had meant that there was a real and substantial risk of an unfair trial. The High Court refused the grant the application, noting that a court should be slow to dismiss proceedings without hearing the evidence (Cassidy v. The Provincialate [2015] IECA 74).

It was held that inconsistencies in Nurse Cox’s evidence would have been present in 1980 as much as 2020 and this could be tested in court. Further, it was the defendant who had chosen not to approach Nurse Anthony for her evidence, rather than her being unavailable.

It was also held that records had not been lost from St Brigid’s or Ardkeen Hospitals. It was accepted that the lost St. Joseph’s records may have been important, but the court held that the parties could use subsequent tests and trials to argue their cases.

Court of Appeal

Delivering judgment in the case, Ms Justice Aileen Donnelly began by outlining the applicable legal principles. It was noted that the plaintiff was under a disability within the meaning of the Statute of Limitations and therefore the normal time limits did not apply.

The court also rejected a submission that there was a public interest in dismissing the proceedings, stating: “There is no stand-alone public interest jurisdiction to stay trials (either civil or criminal) by reference to the rights of other litigants not party to the proceedings.”

The court provided an in-depth consideration of the law relating to delay. The court noted that there was an inherent jurisdiction to strike out a claim even if it was brought within the statutory framework (Toal v. Duignan (No. 1) [1991] I.L.R.M. 135; Toal v. Duignan (No. 2) [1991] I.L.R.M. 140). Further, the court referred to Cassidy v. The Provincialate, where it was said that the O’Domhnaill principles could apply if there was no culpable delay by the plaintiff.

The court held that there was no culpable delay by the plaintiff in the present case. It was said that the plaintiff could never have brought the proceedings herself and required her mother to act as next friend. While there was no explanation for the delay in issuing proceedings, this did not automatically mean that there was culpable delay.

The court also considered Nash v. DPP [2015] IESC 32 in detail, which stated that there was a high constitutional value on proceedings being determined on the merits and that the key consideration was whether a trial on the merits would be unfair. It was noted that there will rarely be a perfect trial with all theoretical evidence is available.

Applying the cases to the facts, the court considered each of the HSE’s complaints in turn. First, the court said that, while the HSE may have adopted a humane approach to dealing with Nurse Anthony, there was no evidence that she was unavailable for trial. The court also accepted that the inconsistencies in Nurse Cox’s interviews were not the result of the passage of time.

In respect of the deceased GP, it was held that his involvement was peripheral to the case. He was simply consulted at the time of transfer to St. Joseph’s and therefore, the unavailability of his evidence would not lead to an unfair trial.

The court considered conflicting expert reports regarding the lost St Joseph’s records, with the HSE’s expert arguing that the records were integral to assessing the plaintiff’s injury. However, the court held that there were medical records available, including a discharge report from Ardkeen. While this was not perfect evidence, it did not mean that there was a risk of an unfair trial.

It was held that the plaintiff was relying heavily on the available records to ground her case, and the objections by the HSE failed to adequately engage with these records. Accordingly, the HSE failed to establish that there was a substantial risk of an unfair trial.


The court upheld the ruling of the trial judge to refuse the application.

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