Court of Appeal: Personal injuries claim arising from defective hip replacement does not need PIAB authorisation

de puy hip replacement

11 November 2021

The plaintiff alleged that he was injured from a defective hip replacement and the High Court had dismissed the claim based on the absence of an authorisation.

However, Ms Justice Aileen Donnelly held that the plaintiff’s claim fell within the exceptions provided by section 3(d) of the PIAB Act 2003 and, accordingly, an authorisation was not necessary for the plaintiff to pursue the action.

Background on the Authorisation

The plaintiff issued proceedings against the defendant, Depuy International Limited, in 2011. The plaintiff had previously undergone hip replacement surgery, with the replacement hips being manufactured by Depuy. The plaintiff alleged that the replacement hips were defective and sought damages for personal injuries.

The plaintiff did not seek authorisation from PIAB prior to instituting the proceedings. As such, Depuy raised a preliminary objection to the claim on the basis that PIAB had not issued an authorisation.

In reply, the plaintiff relied on section 3(b) of the 2003 Act. The section provided that an authorisation was not required in civil actions “arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person.” Since the plaintiff sustained his injuries in surgery for the hip replacement, it was argued that section 3(b) applied.

In the High Court, it was determined that the defendant was correct and that an authorisation was required. The court considered that it was bound by the decision in Murphy v. DePuy International Limited [2015] IEHC 153, where Faherty J. held that section 3(b) was not applicable in respect of a similar defective hip replacement claim.

The decision was appealed to the Court of Appeal. The plaintiff relied on the well-established principle that words should be given their ordinary meaning. As such, he submitted that his claim was clearly one which involved the provision of health service and the carrying out of surgery (Gunning v. National Maternity Hospital [2009] 2 I.R. 117).

It was also claimed that the approach adopted by the defendant was legalistic and would inhibit the capacity of litigants to bring their actions (Clarke v. O’Gorman [2014] 3 I.R. 340).

The defendant argued that it had not carried out the surgery, so the only basis on which the plaintiff could maintain a claim against it was that it was had engaged in the “provision of a health service.” It was said that there was simply no basis for suggesting this where the plaintiff had not sued the hospital or surgeon.

Further, the defendant relied on the wording of section 3(b), arguing that the phrase “arising out of the provision of any health service” meant directly “arising from” or “arising under” rather than simply “in connection with.”

Court of Appeal

Ms Justice Donnelly began by considering the law relating to statutory interpretation. It was noted that the literal approach was the primary method of construction, but that it was permissible to consider words and phrases in context (AWK v. The Minister for Justice and Equality [2020] IESC 10; DPP v. Brown [2019] 2 I.R. 1).

The court had regard to Clarke v. O’Gorman, where the underlying rationale for the PIAB process was identified. There, it was observed that the purpose of PIAB was to provide a service to litigants and remove the need for court cases, particularly where liability is not a serious issue in many cases.

Further, the Supreme Court in Clarke v. Gorman had stated that there was a legal distinction between a cause of action and a civil action for personal injuries. Applying this to section 3(d), Ms Justice Donnelly held that section did not apply to a legal category of cases arising from particular causes of action.

As such, it was said that the exclusions in section 3(d) applied to any civil wrong which resulted in personal injuries “arising out of” a) the provision of a health service b) the carrying out of a medical or surgical procedure and c) the giving of any medical advice or treatment to a person.

The court then considered the meaning of “arising out of” to determine if the plaintiff’s claim fell within the section 3(d) exception. The court concluded that the context of the 2003 Act did not point to a restrictive meaning of the phrase and that an ordinary person would understand the phrase to mean “in connection with”.

As such, it was held that an injury that stemmed from the provision of health service was subject to the exception in 3(d). The court stated that this was in accordance with the rationale of the Act, which was designed “to provide a service to litigants while excluding the particularly complex area of breach of duty in health and medical related matters”.

It was held that the Oireachtas could have taken a different approach to the exclusions, but expressly legislated in ordinary language that claims arising out of a health service were exempt from a PIAB authorisation.

The court held that it did not need to consider the pleadings in the case, but that the facts of the claim did not assist the defendant in its contention that it was merely a defective products claim. The court noted that the injuries clearly arose out of a surgical procedure and that this was true whether Depuy was pursued as a sole defendant or in conjunction with the surgeon.

Conclusion

The court allowed the appeal, stating that the plaintiff’s claim did not require a PIAB authorisation because it fell within the exception contained in section 3(d) of the 2003 Act.

Judgement: [2021] IECA 297

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